quite that comfortable about overturning proposition 8. so can we can we say a prayer right now that his discomfort continues? [cheers] this debate is always framed in terms of the right and the desires of the visit -- of the adults. the children are never mentioned from the other side, but that is the entire reason that government got involved in marriage policy in the first place. i would like to read something that the department of justice, the obama administration department of justice is arguing before the court today. they are saying that same-sex couples divided child-care evenly and are quite satisfied with child care arrangements. well, bully for them.

what about the children? are they satisfied? are they satisfied with government tells them that it does not matter one whit that they will go through life without the tenderness of a mother or the protection of a father? i am the mother of two daughters and on behalf of daughters everywhere, i call that an injustice. i am a lawyer, but i'm going to be brief. i want to end by saying once again, on sunday, 1.4 million march 4n paris traditional marriage. we stand in solidarity with them. two years ago, 1 million spaniards marched in madrid for marriage. we stand in solidarity with them. thank you.

for the sake of the children being here today, we are kicking off the marriage theme in earnest today. thank you. [cheers] >> only about 20 more minutes and we will conclude. our next speaker is the leader chuckreat group, the late fallston -- chuck colson founded. example of what people of faith should stand for in the public square. many of you have probably signed it, the manhattan declaration. c'mon, guys, let's hear it for the manhattan declaration. [cheers] eric tiso.

>> what a beautiful sight. anybody under 30 out there? anybody else on the wrong side of history? is ae a word for you, it letter. paul rode it to the people in galatia a couple of thousand years ago and ended at the keys as something to us especially. he said, let us not grow weary of doing good, for in time, we will reap a harvest if we do not give up. 2009, over 100 religious leaders from catholic, protestant and orthodox traditions, including many of the speakers today, i join together to offer a landmark statement of christian conscience on life, marriage, and religious liberty and it became known as the manhattan declaration. it describes marriage as the first institution of society, the institution on which all other human institutions have

their foundation. marriage is the original and most important institution for sustaining the health, education, and welfare of all persons of society. honored andge is where there is a flourishing marriage culture, everyone benefits, spouses, their children, and the communities and societies in which they live. on the other hand, where a marriage begins to erode, social pathology of every sort quickly manifest themselves. experience confirms this commodified confirms this, and even president obama recognizes this fact. it is the reason that his administration runs a father would add initiative that describes votto lessner as as "a growing crisis on america, one that described many of the challenges that we are facing. when data are not around, but young people are more likely to drop out of school, use drugs,

be involved in the criminal- justice system and become young parents themselves." we're herehe reasons today. marriage is not about what adults want, but what children need. advocates of same-sex marriage often point out that we failed to uphold our own definition of marriage. and too often, they are right. too often, we have failed to model for the world marriage's true meaning. let's commit ourselves today to renewing a culture of marriage. the manhattan declaration. the way forward. to strengthen families, we must reform ill-advised policies that contribute to the weakening institutions of marriage, including no-fault divorce laws. to strengthen families, we must work in the legal, cultural, and religious domains to instill in my generation a sound

understanding of what marriage is, what it requires, and why it is worth the commitment and sacrifice. that is why this week, helped to launch a new group, marriage generation, whose purpose is to be a voice for marriage for the next generation. [cheers] to strengthen families, we must stop glamorizing promiscuity and infidelity and restore among our people the sense of the profound beauty, mystery, and holding as of faithful at marital love. -- and holiness of faithful marital love. if you have not already, today's the day to join the 535,285 christians who have committed themselves to the manhattan declaration movement. today's the day to say that when it comes to life, marriage, and religious liberty, we must stand up to the cultural wind and never render to caesar those

things that right belong to god. much.you very [cheers] >> i want to quickly thank the archdiocese of philadelphia over here. philadelphia, the archbishop, thank you. could come in a little closer, we're coming to the end. thank you for staying. the next speaker, i think you will will be watching here. you will really want to hear. the next door is not something you will see in the mainstream media. -- the next story is not something you'll see in the mainstream media. i will let you hear it from him. [applause]

>> i am doug maine wearing and diane guay. and for a long time i was pro- same-sex marriage. after all, it only seems fair, until i began to consider why i supported it. and i came to the following conclusion. marriage is an immutable term and we should not mess with it. when i was in minnesota a couple of weeks ago testifying before the state legislature, i heard -- i heard the constant refrain marriage is about love and commitment and responsibility. not exactly true. the state's sole interest in marriage is kids. that is the reason the institution exists. we should tremble in fear at the notion of fun doing it. -- of undoing it. of course, children need a mother and father. this is a no-brainer.

two men and two women in a relationship is not exactly the same as a man and woman. kids need and deserve both a mother and father. [cheers] will not readage the fine marriage. it will undefined hit and it and in soel it doing, and define children. this is not progressive legislation. this is regressive. not the first time our society has undefined marriage. no-fault divorce sound of like a great idea at the time, but a change marriage from a permanent relationship to a temporary one. and almost any child of divorce will tell you divorce was a tragedy in their lives. same-sex marriage will bring us further down that path,

depriving children of their right to a mom or dad. i as a gay man, i can state categorically it is not homophobic to oppose same-sex marriage. [cheers] in fact, it is very wise to maintain marriage as it has always been. supreme court legislators and jurors are around the country, as low this train down. slow this train down. [cheers] ignore the media which relentless manufactured urgency to institute same-sex marriage. the slowdown and put on the brakes. thank you. [cheers and applause] forll of us should pray

doug and others who were standing up. you can imagine the sort of vitriol he has to go through. and bobbi lopez, who just spoke in france, who is gay against the marriage. we need to pray and support them in any way we can. littlet speaker knows a bit about proposition 8. he was the campaign manager for proposition 8. he is also the national organization for marriage because the political director nationally. he has led the california fight and many state after. his name is frank schubert. [applause] >> it is great to be here. thank you so marriage -- so very much. it reminds me of a proposition 8 campaign.

it is amazing to see every -- to see people come across every barrier, men and women, young and old, independent and republicans and democrats, people of faith and people of no faith. they came together, over 7 million of them to pass proposition 8. the mall hereon in washington, d.c., organized to oppose same-sex marriage with demonstrations on both sides of the issue rally at our nation's capital. this event continues live at our website c-span.org and all of the morning's events. all are the mall here in available at our website c-span.org. we're going to break away from this live coverage to take you inside the supreme court for this morning's oral arguments, the first of two days on the issue of gay marriage. today's case snizzle likly focusing on proposition 8 in california -- today's case specifically focusing on

proposition 8 in california. >> he will hear arguments this morning in case 12144, hollingsworth verses. . perry. >> until quite recently, it was an accepted truth for anyone who almost ever lived in any society in which marriage existed. >> we of the jurisdictional and merritt issue. maybe it would be best if you could begin with the standing issue. the official proponents of proposition 8, the initiative, have the standing to defend that measure before this court as representatives of the people and the state of california, to defend the validity of the measure that they brought

forward. >> have we ever granted standing to proponents of ballot initiatives? >> no, your honor. the court has not done that. but the court has never had before it a clear expression from unanimous state's high court. certainly,ern is, the proponents are interested in getting it on the ballot and miggy sure that all proper procedures are followed, but -- making sure that all proper procedures are followed, but once it is banned, -- once it is spent, how are they distinguishable from the california citizenry in general? >> they are distinguishable because the constitution of the state of california and its election code provide, according to the unanimously interpreted version of the california code

that the official proponents in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and responsibility to defend the validity of that initiative. >> i guess, the attorney general of the state does not have any proprietary interest either, does he? >> no, your honor. >> because the law says he can defend it. >> that is right, your honor, nor do the legislative leaders in the kircher case. >> could this date assigned to any citizen the right to defend the judgment of this kind -- could the state assigned to any citizen the right to defend a judgment of this kind? >> that is a tough question. not any citizen. it is the official proponents that have the specific and carefully detailed -- >> if you would on the

hypothetical, could the state assigned to anybody the ability to do this? >> your honor, it very well might be able to decide any citizen could step forward and represent the interest of the state and the people. >> that may be true in terms of who they want to represent, but a state cannot authorize anyone to proceed in federal court. that would leave the definition under article 3 of the federal constitution as to who can bring, who has standing to bring claims. i do not think we have ever allowed anything like that. >> but the point i'm trying to make, your honor, is that there's no question that the state itself has standing to represent its own interest and ability of its own enactments. and if the state's public officials to -- declined to do

that, it is within the state's authority, i would submit, to citizen or not any supporter of the measure, are a veryhose that clear an identifiable group. >> the chief justice has given a proper hypothetical to contest your theory. but in this case, the proponents must give their official address. they must pay money. and they must act in unison under california law. these five products are required at all times to act in unison -- these five proponents are required at all times to act in unison and to register and pay money. in that sense, it is different from simply saying any citizen. >> but of course it is. >> can you tell me that is a factual background with respect to their right to put a ballot

initiative on the ballot? create an injury to them separate of that of every other taxpayer to have laws enforced? >> the question before the court, i would submit, is not the injury to the individual proponents, but to the state. the legislators in the kircher case had no individual particularized injury, but this court recognized they were proper representatives of the state's interests. >> at least one of them has suggested that it seems counterintuitive to think that the state is going to delegate to people who do not have a fiduciary duty to them. that is going to delegate a responsibility of representing the state to individuals who have their own views. they proposed the ballot

initiative because it was their own individual views, not necessarily that of the state. scalia offered the question of the attorney general. the attorney general has no personal interest. >> true. >> though he has a fiduciary obligation. >> the attorney general, whether a fiduciary obligation or not, is in normal circumstances the representative state to defend the ability of the state enactments when they are challenged in federal court. but when an officer does not do so, the state shirley hawes -- surely has every authority and i would submit, responsibility, to identify in particular an initiative. >> why is the fiduciary requirement before the state indicative of representative?

>> i do not think there is anything in article 3 or in any of this court's decision as to suggest that a representative of a state must be -- have a fiduciary duty. >> generally, you do not need to specify it, but it is generally the people who get to enforce the legislation of the government, those who are in government positions, let elected by the people. here they are not elected by the people or appointed by the people. >> and the california court specifically rejected that specific target and. they said it is in the context when the public officials, the elected officials have declined to defend a statute. a constitutional amendment, was brought forth

through initiative and it was the integrity of that state to protect the rights of every citizen. after all, the initiative process is designed to control those very public officials, to take issues out of their hands. and if public officials could effectively veto an initiative by refusing to appeal it -- ismany states have what called a public action. a public action is an action by any citizen, primarily to and to make sure the lot -- the law is enforced.

that enables the court to say that it does not lie in the federal system. and then to say that they really feel it is important that the law be enforced, they really want to vindicate the process, and these are people of special interest, we found the five citizens who most strongly wants process of thee lobbying and forth, that will not distinguish it from public action. but then you also said there representing the state. at this point, the doniger brief, which takes the other side, is making a strong argument that they are really no more than a group of five people who feel really strongly that we should indicate this public interest, and have good reason for thinking it. you have read all of these arguments and you know they're not be the agents and so forth. what do you want to say? >> according to the california supreme.

-- supreme court, the california constitution says in terms that among the responsibility of official proponents, in addition to any other responsibilities that they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public a officials within the initiative process is designed to control have refused to do it. it might as well say in those terms, your honor. >> if you want to proceed to the merits, you should feel free to do so. you, sir. as i was saying, the accepted that the new york high court observed is one that is changing, and changing rapidly in this country, as people

throughout this country engage in the debate over whether an age old definition of marriage should be changed to include same-sex marriage. the question before this court is whether the constitution put a stop to that ongoing debate and answers the question for all 50 states. and it does so, only of the respondents are correct that no rational, thoughtful person of good will could possibly thisree with them on agonizing lead difficult issue. in baker against nelson, this court unanimously dismissed the federal question. >> baker-nelson was 1971. the supreme court had not even decided that gender based classification had any type of

heightened scrutiny. intimate contact with considered criminal in many states in 1971. i don't think we can extract months -- to extract much from banker against nelson. >> baker against nelson also came fairly fast on the heels of a loving decision. -- of the loving decision. i merely make the argument that it seems plausible in the extreme decision for nine justices to have seen no substantial federal question if it is true, as the respondents maintain, that' the traditional definition of marriage insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational

and can only be explained as a result of anti-gay malice and a desire to harm. a defense that can be treated as a gender based classification? it is a difficult question that i'm trying to wrestle with. >> yes, your honor. we do not think it is properly as a gender based classification. virtually every appellate state with the exception of hawaii in its superseded opinion have agreed that it is not a gender based classification. i guess it is gender based in the sense that marriage itself is a gendered term, a gender institution, and the same way that fatherhood is gendered, or motherhood is gendered. it is gendered in that sense.

but we agree to the extent of the classification. it impacts, as it clearly does, same-sex couples krabak classification can be viewed as one of sex role orientation -- sexual orientation. >> outside of the marriage context, can you think of any other rational basis, reason for a state using sexual inentation as a factor denying homosexuals benefits? or imposing burdens on them? is there any other rational decision making that the government could make? in denying them a job, not granting them benefits of some sort any other decision?

>> your honor, i do not have anything to offer you. then whyt is true, aren't they a class? if they are a class that makes any other discrimination improper, irrational, then why are we treating them as a class for this one thing? are you saying that the interest of marriage is so much more compelling than any other interest they could have? >> no, your honor, we certainly are not. we are saying that the interest in society's interest, in what we have framed is vital. with respect to those

interests, our submission is that same-sex couples and opposite sex couples are similarly -- are simply not similarly situated. but to come back to your question, i think, justice sota meyer, you are probing into whether or not with respect to l orientation ought to be viewed as a suspect class. our position is that it does not qualify under this court's standard and traditional attest for identifying suspected as. suspectiveness. it is quite amorphous. it denies explanation, as experts are quite withvivid on. does not qualify as an accident of birth, amiability in that sense.

sense.utability in that >> if you are not dealing with this as a class question, the more we do see the government is not free to discriminate against them? think ityour honor, i is a very different question, whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this court's traditional task force's effectiveness -- for suspectiveness. , would submit it would create unless there's something not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals. that is not what we think is at the root of traditional

definition of marriage. itin reading the brief, seems as though your principal argument is that same sex and opposite sex couples are not similarly situated because opposite sex couples can procreate and same-sex couples cannot. and the state's main interest in marriage is in regulating procreation. is that basically correct? the essential thrust of our position. >> you have a reason for not .ncluding same-sex couples is there any reason for excluding them? words, you're saying, well, if we allow same-sex couples to marry, it does not serve the state's interest. but do you go further and say that it harms any state interest? >> it your honor, we go further in the sense that it is reasonable to be concerned that

redefining marriage as a genderless institution could well lead over time to harm's to that institution and to the society that has toays used that institution address. trex explain that a little bit to me, because i did not pick that up in your grief. what harm do you see happening? and when and how, and what harm to the institution of marriage or to opposite sex couples? how does this cause and effect work? >> once again, i would reiterate that we do not believe that is the correct legal question before the court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of .arriage >> are you conceding the point that there is no harm or

denigration to traditional opposite sex married couples? >> no, your honor, i'm not conceding that. >> then it seems to me that you have to address just as hagin's question. >> thank you, justice kennedy. i have two points to make. the first is this. the plaintiff's expert acknowledged that redefining marriage will have real-world consequences and it is impossible for anyone to foresee the future accurately enough to know exactly what those real- world consequences would be. and among those real-world consequences, we would suggest there are adverse consequences. but consider the california voter. with then the ballot not thisof whether or

age-old, bedrock institution should be fundamentally redefined, and knowing that there is no way that he or she or anyone else could possibly know what the long-term changing of of the a bedrock institution would be. that is reason enough. irrational for that voter to say, i believe this experiment, which is now only fairly four years old even in massachusetts, the oldest state conducting it, to say that i think it better for california to hit the pause button and wait whereditional information the experiment is still maturing. >> i do not know why you do not mention some concrete things. you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples.

and there is considerable disagreement among sociologists as to what the consequences of raising a child in a single sex family, whether that is harmful to the child or not. permitates do not adoption by same-sex couples for that reason. >> california does. >> do we know the answer to that, whether it harms or helps the child? >> no, your honor. >> that is a possible deleterious effect, isn't it? it would not be in california, because that is not an issue. in california, you can have same-sex couples adopting. >> your right, your honor, that is true. >> it is true, but irrelevant. they are arguing for a nationwide rule, which applies

to states other than california, that every state must allow marriage by same-sex couples. even those states that the league is harmful. i take no position on whether it is harmful or not, but it is certainly true that there is no scientific answer to that question at this point in time. >> and that is the point i'm trying to make, and it is the respondents responsibility to prove under rational basis review not only that there will clearly be no harm, but that is beyond debate that there will be no harm. >> you are opposing a judgment that applies to california ..., not to all of the state. >> that is true, your honor. and if there were a way to cavan the arguments presented to you to california, then the concerns

about redefining marriage in california could be confined to california, but they cannot, your honor. >> i think there is substance to the point that sociological information is new. we have five years of information to weigh against 2000 years of history, or more. anthe other hand, there is immediate legal injury, or what could be illegal injury, and that is, the voice of these children. there are some 40,000 children in california, according to the read brief, that live with same- sex parents. parents tont their have full recognition and full status. the voice of those children is important in this case, don't you think? >> your honor, i certainly would not disputes the importance of that consideration, especially

in the political process for this issue is being debated and will continue to be debated, and certainly in california and is being debated elsewhere. but on that specific question, your honor, there is simply no .ata in fact, their expert. there is no data, no study even, that would examine whether or not there is an incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the state of honor,nia to recognize, and support same-sex relationships and their families. there is simply no data at all that would permit one to draw that conclusion. qiote just as quiet -- i would quote justice kennedy in

the state vs. grauman. >> mr. cooper, we will afford you more time. you should not worry about losing your rebuttal time. >> as long as you are on that, that i would like to ask you this. assuming you could distinguish scalia'sa and except version of your argument and distinguish california, what precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of that allowing sterile companies of different sex to marry would not? there are lots of people who get married you cannot have children. take a state that does allow there, what isy

the justification for saying no gay marriage? certainly, not the one you said, is it? am i not clear? you said the problem is marriage as an institution that further procreation. and the reason there is adoption. but that does not apply to california. california and i'm looking just there were your argument does not apply, what happens to your argument of using marriage as an institution toward procreation, given that there are couples that cannot have children that get married all the time. >> yes, but redefining marriage as a genderless institution will redefine it away from its

historic purposes and it will refocus the definition of marriage away from the raising of children and to the emotional needs and desires of adults. >> suppose the state said, because we think the focus of marriage really should be on procreation, we will not give marriage licenses anymore to any couple where both people are over the age of 55? would that be constitutional? >> no, your honor, it would not. >> i would think that is the same states interest. if you are over the age of 55, you do not serve the regulation of procreate -- of procreation through marriage. >> even with respect to couples over the age of 55, is very rare that both parties to the couple are infertile.

[laughter] >> i can just assure you that if both the woman and man are over the age of 55, there are not a lot of children coming out of that marriage. [laughter] >> society's interest in response procreation is not just with respect to the procreative capacities of the couple itself. the marital norm, which imposes the obligations of fidelity and , advancesyour honor the interests of responsible procreation by making it more likely that neither party, including the farag party -- the fertile party to that. >> i suppose we could have a questionnaire at the mayor's the marriage and death, are you for all or not fertile?

i suspect this court would hold that to be an unconstitutional invasion of privacy, wouldn't you? >> i'm just talking about aids. not anything else. we ask about people's age all the time. about age, young would have to ask if both parties are infertile. not thehairman was chairman of the committee when justice cayton was confirmed. >> very few men outlive their own fertility. >> in a couple where both people are over the age of 55. >> and your honor, again, the miracle norm, which imposes upon that couple the obligation of is designed toown fertility.

make it less likely that either party to that marriage will engage in your responsible procreative conduct outside of that marriage. that is the marital norm. society has the interest in seeing a 55-year-old couple, just as it has an interest in seeing any heterosexual couple that intends to engage in a prolonged time frame of cohabitation, to reserve that until they have made a marital commitment. so that picture that union produced any offspring, it will be more likely that that child or children will be raised by a mother and father who brought them into the world. >> if you said somebody who is locked up in prison and is not going to get out has a

, noamental right to marry possibility of procreation. >> your honor is referring, i am sure, to the turner case. and with no disrespect, justice ginsburg way over reads turner against shapleigh. it wass a case in which decided within the specific context of a particular prison where there were both female and male inmates, many of them minimum security. it was dealing with the regulation that in a previously committed marriage in the case of a pregnancy and childbirth. the court emphasized that among the incidents of marriage that are not destroyed by at least at present context was the expectation of eventual consummation of a marriage, and legitimization of the children.

>> thank you, mr. cooper. >> thank you, mr. chief justice. >> mr. olson? >> thank you, mr. chief justice, and may it please the court. i know you will want me to spend a moment or two addressing the standing question. but before i do that, i thought important for this court to have proposition 8 putting context, what it does. its walls off gays and lesbians from marriage, the us import relationship in live according to this court, thus stigmatizing a class of californians based on their status and labeling their most cherished relationships as second rate, different, not equal, and not ok. off yourson, i cut

friend before he could get into the marriage. >> i was trying to avoid that, your honor. >> i know you were. [laughter] i think it is only fair to treat you the same. perhaps you could address your jurisdictional argument? think our jurisdictional argument is, as we set forth in the brief, california cannot create article 3 standing by designating who every once -- whoever it wants. >> its is not whoever wants. these are five proponents of the measure. if we are to accept your argument, it would give the states a one-way ratchet. the state could give me the heart -- a half-hearted defense of the statute, and then when it is held invalid, simply leave. on the other hand, if the state loses, it can appeal. it is a one-way ratchet that favors the state and allows other constitutional officers in

different states to thwart the initiative process. >> that is the way the california supreme court saw it with respect to california law. the governor and the attorney general of california are elected to act in the best interest of the state of california. they made a professional judgment, given their obligations as officers of the state of california. the california supreme court has said that proponents -- and by the way, only four of the five are here. dr. chamowitz drew from the case because of some things he said during the election -- dr. camp which drew from the case because of some of the things he said during the election process. is it true that if the attorney general and the governor do not like the ballot initiative, it will go undefended? correct one of your colleagues? >> in one of your colleagues have suggested there could be an appointee of the state of

california who had a fiduciary responsibility to the state of california and the citizens of california to represent the state of california. >> who would appoint him, the same governor who did not want to defend the? >> it happens all the time, as in the case of -- let's not spend too much time on an eventual counsel provisions. -- on individual counsel provisions. [laughter] can have aernor perceived person of interest. that person might have the responsibility of the state and also possibly attorney fees. >> i suppose there is a person who could perform marriages, but prefer not to perform same-sex marriages. it seems that the only options here are proponents for the state. i'm not sure there are not other people out there who would not have individual, personalized

injury. >> it might be in some other case. i do not know about this case. this was an issue of allocated resources of the state of california and maybe it was a primary system of resources and other people did not get resources and there could be standing of showing actual injury. the point at the bottom of this is, the supreme court decided in range versus bird that congress could not specify members of congress in that congress -- in that context, even where the measure diminished powers of congress. >> the states are not bound by the same separation of powers doctrine that underlies the federal constitution. you could have a federal initiative -- you could not have a federal initiative, for example. state having the

standing to defend the constitutionality of a state law beyond dispute. who represents the state? in the state that has the initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials. the whole point, and you know this better than i do because you are from california -- the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious. if you reject the proposition about what is left is the proposition that state law can choose some other person, some other group to defend the constitutionality of a state law. and the california supreme court has told us that the plaintiffs in this case are precisely those people. how do you get around that? >> that is exactly what these -- the california supreme court thought. the california supreme court thought it could decide the proponents, whoever they were, and this could be 25 years after

the election, it could be one of the performance, four of the proponents, they could have the interest of the state because they have no fiduciary responsibility. they may be incurring attorney'' fees on behalf of the state or on behalf of themselves, but they have no official responsibility to the state. and my only argument, and i know it is a close one because california thinks this is a system that would be the fault system i'm suggesting that from your decisions with respect to article 3, it takes more than that. >> mr. olson, i think you're not answering the fundamentals here. in the amica brief that sets .orth the fiduciary duty areassumption is that there

not executive officials who want to defend the law. no one is going to do it. how do you get a lot offended in that situation? >> i do not have an answer to that question, unless there is an appointment process either built into the system where it is an officer -- >> why is it in dispute that the appointment process, the ballots initiators have now become that body? >> and that is the argument that our opponents make. but it must be said that it happens all the time that federal officials and state not to enforcee a statute, to enforce a statute in certain ways. we do not then come in and decide that someone else ought to be in court. >> the brief says that of course to appoint people. it is not just that you appoint. it is that the state's interest when you uphold the law is the interest in executing the laws of the state. all you have to do is give a person that interest.

but when the person has the interest of defending this law defending the law of state of california, there can be all kinds of conflicts. that is what i got out of the brief. give the person that interest. and that, they say, is what is missing here. they say it is here, and you say it is missing. why is it missing? >> because you are not an officer of the state of california and you do not have a fiduciary duty to visit california and you are not bound by the ethical rules of this tip of california and there could be conflicts of interest. and you could be incurring enormous legal fees on behalf of the state when it states goes that route. >> you should feel free to move on to the merits. >> thank you, your honor. as i pointed out, this is the end -- a measure that walls of

the institution of marriage, which is not society's right. it is an individual's right that this court has said again and again defending the law of state of california, there can, the right to the relationship of marriage is a personal right, the right of association, liberty, and the pursuit of happiness. and the cases in which you have described the right to get married under the constitution, you have described it as marriage, procreation, family, other things like that. the procreation aspect, the responsibility or the ability or the interest integration is not a part of the right to get married. >> i'm not sure that it is right to view this as excluding a particular group. when the institution of marriage developed historically, people did not say, let's have this institution, but keep out homosexuals. the institution developed to serve persons that by their

nature did not include homosexual couples. yes, you can say that it served some of the other interests where it makes sense to include them, but not all the interests. it seems to me that if your friend argues on the the side that you have an institution that pursues additional interest, you do not have to include everybody just because some other aspects of it can be applied to them. >> there are a couple of answers to that, it seems to me. in this case, that decision to exclude gays and lesbians was made by the state of california. >> that is only because proposition 8 kaine 140 days after the california supreme decision.ed its >> that is right >> and don't you believe is right to view it as a change parties about -- the california supreme court? >> the california supreme court decided that equal protection and due process clause of that california constitution did not

permit excluding gays and lesbians from the right to get married. >> you led me right into a question i was going to ask. court doess supreme not decide what the law is. that is what we decide, right? we decide -- we do not prescribe for the future. we decide what the law is. when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868 when the 14th amendment was adopted? baker where we said it did not even raise a substantial federal question? when did the law become this? to enter theke form of a rhetorical question. when did it become unconstitutional to prohibit interracial marriages? that one, aton for

the time that' the equal protection clause was adopted. that is absolutely true. but don't give me a question to my question. [laughter] became you think it unconstitutional? has it always been? >> when the california supreme court face the decision it had never faced before of, does excluding gays and lesbians based upon their status as homosexuals, is it constitutional -- ? >> that is not when it became ogs -- unconstitutional. that is when it acted in an unconstitutional manner. when did it become unconstitutional to prohibit ghaith from marean? -- days from marean? i'm talking about your

argument. you say now it is unconstitutional. >> yes. >> was it always unconstitutional? >> it was unconstitutional when we as a culture decided that is characteristic of individuals that they cannot control -- >> when did that happen? >> there is no date in time. >>, i suppose to know how to decide a case? >> -- how am i supposed to know how to decide a case when you cannot give me a date? >> after the california supreme court decided that individuals had a right to get married irrespective of their sexual orientation in california and in californians decide in proposition 8, wait a minute, we don't want those people to get married. >> your case would be different if proposition 8 was enacted into law prior to -- it in onestinguishes respect. but what also -- i would also

make the argument, mr. chief justice, if marriage is a fundamental right and we are making a classification based on a status of individuals, which this court has repeatedly decided that gays and lesbians >> it would be unconstitutional even in states that did not allow it? >> we submit that. the >> i want to know how long it has been unconstitutional. know how to decide the case. >> you never required that before. when you decided that individuals were permissible, when you decided that was unconstitutional, when did that become? >> if years ago it was ok. -- 50 years ago it was ok.

>> the case that is before you today is whether or not california can take a class of individuals based upon their characteristics, remove from them the right of privacy, liberty, spirituality, and identity that marriage gives them. it is not an answer to say procreation or anything of that nature. it is not a part of the right. >> that is a broad argument. the rationale of the circuit was much more narrow. it says that california, which has been more generous and open to protecting same-sex couples in almost in the state did not go far enough and is being penalized for not going far enough. >> that is a very odd rationale.

>> for example in the new orleans case involving the gambling casinos, you look at the context of what was permitted and was knocked permitted. it prohibited the relationship and marriage. sense?t make any >> california provides all the substance of benefits of marriage to a domestic partnership. a ususally arguing that of california, if the case people are as were from a state that does not provide any of those benefits that this would come out differently? >> it would not come out differently. opponent talksy about child-rearing or adoptions are right the people

to live together and they cannot be made on behalf of california. california has made a decision that they're perfectly suitable for parents. they are raising 37,000 children. >> the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get there. >> you cannot have it both ways. either this case is the same, it to be the same if it were utah or oklahoma or it is different because it is california and california has provided the substances. >> it is not worth arguing that those are inconsistent. but the fundamental thing is that denying gays and lesbians the right a marriage which is fundamental under your decisions, that is unconstitutional. if the stay comes forth was certain -- state comes forth was

certain justification's, they cannot make the argument about adoption or child rearing are people living together because they have already made policy decisions. the >> this is just about the label. it is just about the label. >> the label marriage mean something. dick >> if you tell a child that somebody has to be their friends i supposed to enforce the child to say this is my friend but it changes the definition of what it means to be a friend. that is what supporters are saying here. all you're interested in is the label. >> their certification levels that are very critical. get married each have

an interracial unions. everybody would know that is wrong. do we know that is the recognized we have marriage as a fundamental right that you have to emphasize that. you said it is because of the emotional commitment. maybe it is the aspect that makes this a fundamental right. fundamentalis a right with respect to appropriation. you said this in the case. he said this and other cases. marriage is put on a pro-equal footing with appropriation aspects. this court is the one that has said over and over again that marriage means something to intimacy. this is one that i am

interested in the answer. >> if you say that marriage is a fundamental right, what stage ?estrictions could ever exist what restrictions with respect that could get married? hasn accept that the state probably an overbearing interest -- ofrotecting a child protecting a child until they are of age to marry. >> you said that the polygamy issue raises questions about exploitation, but use, patriarchy, issues with respect to of taxes. it is an entirely different thing. prohibits the gay and

lesbian citizens from getting married, and it is preventing their exercise their right based upon their status. it is selecting them as a class. you are speaking of a group of individuals to deny them a free them that you said it is vital in this society and has status and stature indian bmi k -- in the bmi case. >> is there any way to decide this that is limited to california only? >> the ninth circuit court did that. you could decide it as the ninth circuit bid. >> the problem with the case is that you are asking because of the sociological evidence. with this uncharted metaphor.

you are doing so in a case with the opinion is very narrow. once the state goes half way it has to go all the way. wheree doing so in a case there is a substantial question. i just wonder if it was properly granted? >> it was certainly properly granted. there was a full trial of all of these issues. there was a 12 day trial. issue the not the ninth circuit decided. >> they looked at it and be decidedt it could on the narrower issue. it was certainly an appropriate case to grant. those issues are certainly fundamental to the case. the not want to abuse

indulgence. you suggested this is uncharted waters. it was uncharted when this court in 1967 said prohibitions on interracial marriages which still existed in 16 states were unconstitutional. >> it was a hundred years old and the common-law countries. >> that is not accurate. >> i respectively submit that we learn to understand more about sexual orientation and what it means to individuals. the language that justice ginsburg used at the closing of the be in my case is a prime part of the history of our tostitution is a right people once ignored or excluded. >> thank you.

>> proposition 8 denies gay and lesbian persons equal protection of the law. you do not think you'll get away with the starting its? ? >> i thought i might. we do not have a formal position on standing. i will offer this observation based on the discussion today. we do think while it is not free of doubt that the better argument is that there is not article 3 standing here. i do not want to go beyond summarizing our position. we do think with respect to standing back at this time with that they haver

more than a generalized grievance. because they're not an agent and not have any other official ties to the state that would result in any official control of their litigation, that there's not this standing here. >> umar you will be making a standing arguments that some parties think is right. rather tenuous. >> we said this is a close question. tomorrow we will be prepared to discuss it with the courts. with respect to the merits, to fundamental point lead to the conclusion that there is an equal protection violation. every warning flag that warrants scrutiny is present in this case. requires the court to ignore those warning flags and apply

highly deferential rational basis review. they are on par with the law with them less favorably than optometrists. it is the polar opposite. >> i understand your argument. talking about the entire united states. only eight or nine states. this brings up a question that was asked to before. a state that has made considerable progress has to go all the way. is theernor's position state has done absolutely and it can do as it will. >> that kickget to the sec

complaint. that california's own laws and to cut the legs out from under the justifications that they have offered in defense of proposition 8. i understand the point you raised earlier. i do think this requires the court to evaluate the interest of the state puts forward in the context of the actual substance of california law. couples do have the legal rights and benefits of marriage, full access to the assisted reproduction. the argument about the interest is that these have to be tested against that reality. they just do not measure up. >> look.

a state that does nothing for gay couples kirk's them much more than a state that does something. it is sure that it does hurt their argument that they do quite a lot of. which are the good arguments? take a state. they have no benefits. nothing. more over, if you are right, this is enough, they will not get federal benefits. those that are tied to marriage. they are not married. a state that does nothing hurts them much more. to be justified under the constitution. i would like to know some specificity how that could be? >> you have to understand that we think this is -- >> which are good arguments that

would be good enough to overcome a state that does nothing but not good enough to overcome california? we are not prepared to close the door to an argument in another state. i suppose the rationale which he identified with respect to the effects on children if it can up on a different case, this was litigated by the theory that a rational basis uplight. they did not try to show anything. i argue that heightened scrutiny should apply. this and be a very heavy burden for the state to meet. in a situation in which they're not come out from under, it

ought to remain open. i think this would be the rationale where you might keep it open. >> i understand that. i do think you have to think about the claim of right on the other side of the equation. in this situation, and the argument here that gay and lesbian couples can be denied access to a marriage on the ground of an interest in responsible procreation and child-rearing cannot stand up given that the parents have this.quality apart from >> you want to stress the of effects of same-sex theiage, and the effects of

proposition. which is your response to the argument about the need to be newness in light of the of the content of same-sex marriage? one thing the parties seem to agree on is that marriage is very important. it is thought to be a fundamental building block of society. the preservation is essential for the preservation of society. traditional marriage has been around for thousands of years. same-sex marriage is very new. it was first adopted in the netherlands in 2000. there is not a lot of data about the effect. it may turn out to be a good thing. it may turn ought not to be a good thing. us to step in and render a decision based on an assessment of the attacks -- the

effects? we do not have the ability to see the future. on a question like that, why should not be left for the people by their initials and referendum or through their public officials? >> i think these are all important. not do what myid friend said and push a pause button. they pushed the delete button. it is a permanent ban. it is in the constitution. --ond >> of course the constitution could be amended. i read that the california constitution has been amended 500 times. the aim of this is to take it out of the normal legislative process.

with respect to the concerns that your honor has raised, california has been anything but cautious. it has given equal parenting rights, equal adoption rights. those are on the books in california now appeared the interest of california is that -- now is in the interest of california that it has to be represented. >> the whole country has been cautious. >> you are asking us to impose this on the whole country. >> we are not. our position is narrower than that. states that have granted these rights short of marriage. >> i want you to get back. is it the position of united states that same-sex marriage is not required throughout the country? >> we are not taking the position that it is required. we think that ought to be left

--n for future of education education. only if state allows civil unions as it become constitutional to forbid same- sex marriage. you can go on. >> thank you. >> i would just take out a red pen and take the word "only" out of the sentence. when it is true, it forbids the exclusion of same-sex marriage. is an open question otherwise. the argument here is about caution. it is an argument that we need to wait. we understand that. act.ng is not a neutral it poses a real cost. that want to parents th

to marry the ability to marry. this is at the heart of the marriage relationship. happena is has got to right now. you do not even have a position about whether it is required. to a state that allows gay couples to have children and to have families -- antoninus this >> it has to happen were the same every legal right that others do. >> wait and see what kind of record they can make. they cannot make the record to justify the exclusion. behow could the records different?

>> they might try to make a record about the effects on children. the fourth point i would make, and i do think this is significant is that the principal arguments with respect to the commonwealth of events is that it is still uncertain about how biracial children will bear. think the court recognizes that there is a cost to waiting. that has got to be part of the equal protection calculus. that is quite fundamental. >> it seems to me the position you are supporting is somewhat internally inconsistent. the other is proposition 8 harms children by not allowing same couple's marriage.

>> we are denying the long term stabilizing effect of that marriage brings. that is the argument. shall too harm children of same-sex couples. >> there are 37,000 children and same-sex families now. their parents cannot marry. that has the effect on them in the here and now. the stabilizing of that is not there. they do not have parents like everybody else. >> the real cost right now is you're asking me to write these words. telling you about states that don't. i guess there is a real world of that there. states that are considering say they will not do it.

that would have a real effect right now. at the moment i am thinking it is much more harmful to the gay couple. you will not give me advice. that all the mourning flags for this are present. they said at the podium today that there is no justification for that discrimination in any round other than the one proposed in this case. present, factors are those are paradigm considerations for the application of heightened scrutiny. cities that have not taken this step are going to have an easy time meeting heightened

scrutiny. it to be a different case. >> you have 10 minutes. >> thank you appeared may i address why you think we should decide this case? >> that is one thing on which i wholeheartedly agree with. this case is now properly before the court. it was granted even if one could defend the a specific judgment below for the ninth circuit. a judicial redefinition of marriage that can be limited to

california is well worthy of the court's attention. single district court judge in a single jurisdiction. >> mr. olson does really focus on this. the issue is letting the state experiments and letting the society have more time to figure out the direction. is this now an issue? we let our racial segregation perk for 50 years. now we're only talking about at most four years. >> it is hard to imagine a case priest andetter

argued to this court. it is too late for that now. we should let the purchase it for another, you know. we have across that river. it is to essentially blessed the judicial system that in the state of california at the people have no authority to step back and hit the pause button to allow the experiments further mature. even then california, argument he says applies to at least eight states. it is impossible to limit these propositions to any particular

jurisdiction. this court will be making a very real decision with respect to same-sex marriage if it decided to dismiss it. let's step back and consider for a moment the argument. he is basically submitting to the court that essentially the one compromise that is not available to the states is that the states but california has undertaken. it is to go up as far as the andle can and honoring recognizing the families and relationships of same-sex couples while still preserving the existence of traditional marriage as an institution. >> i thought he was saying that before the court today.

that case is not before that court today. >> forgive me justice ginsburg. what case is not before the court? >> the cohabitation of people of different races. >> forgive me. i'm not sure i'm following the question.

i think people of different with were arrested interracial cohabitation. they said that was invalid. >> thank you. forgive me. i am forgive me. and, you know, i'm glad that counsel for the respondents mentioned the loving case, because what this court -- what this court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage.

that's what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable. and with all due respect to counsel and to the respondents, that is not a hard question. if, in fact, it is true, as the people of california believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that's why marriage itself is the institution that society has always used to regulate those heterosexual, procreative -- procreative relationships. counsel -- the solicitor general

has said that the ban that the proposition erects in california is permanent. isl, it's -- certainly that not the view of the respondents and what we read every day. this is not an issue that is now at rest in the state of california, regardless -- well, unless this court essentially puts it to rest. that democratic debate, which is roiling throughout this country, will definitely be coming back to california. it is an agonizingly difficult, for many people, political question. we would submit to you that that question is properly decided by the people themselves. thank you, mr. chief justice. >> thank you, counsel, counsel. the case is submitted.

>> with that john roberts closing days one of two days of arguments of the case of st.- sex marriage. today, promises in eight in california. tomorrow the defense of marriage act. our phone lines are divided for those who support or oppose same-sex marriage. case, the california st.-sex marriage ban, if you support or oppose that issue. the will get to your phone calls, but proposition 8 defines marriage as between a man and a woman. voters approved it in november of 2008, it went to the court

system. nine states as well as the district of columbia recognize same-sex marriage. the sceneow you outside the supreme court that continues to be a media frenzy, although not the large contingent that we saw earlier today. but back tomorrow morning. the court granting the media access for same-state on the release, which is why you were able to hear it in its entirety. will read- we broadcast that tonight at 8:00 eastern, 5:00 on the west coast. also on c-span radio and posted on the web at c-span.org. let's begin with sue from kentucky. yes, i would like to

speak that i am opposed to sanest-sex marriage, whether it be a woman or a man. woman, and he for did not make a man for a man and he did not make a woman for a woman. we have to go back to the bible in genesis and sodom and gomorrah went got rained down fire and brimstone to homosexuals, who took two sent down destruction. if the court the its down same- sex marriage, please i implore you, do not vote for same-sex marriage for country and for individual people in the united states. host: are following your tweaks tweetsng best -- -- your

-- john is next from maryland. are so many things that are hard to know and to do, but if you love someone, you love someone. people who are in a marriage, if you have a partner who does not have family, if neither one of us have family, and someone is sick in the hospital, if we are not allowed marriage, how can my partner be there and function properly as he should be able to and find out about what is going on with me, or what is going on with him in a crisis situation? a marriage effectively solves that, and that is a very key point for me. that is something that should be addressed with this issue. host: thanks for your call.

the issue today is california possible ban on sinn-sex marriage. --you support the ban next is josh from kansas. caller: i support it and i think not allowing gay people took the right to marry is like not allowing interracial marriage back in the day. we realized that what is wrong, and the this is wrong, too. host: if they love each other, they should be able to marry each other, that is how i feel about the topic. next, a viewer from arizona. good afternoon. i support same-sex marriage as someone who came out about three years ago. i was married for 15 years to a

and had no discrimination. as a lesbian, it has been a different experience. my children see discrimination. we face a lot of discrimination, and so i am hoping that maybe we can go to california and get married later this year. it has beeno say like stepping into a different world. been sad to be in public and feel discrimination. my kids have lost friends over this. peopleo idea how many would be supportive of me when i came out, and i can say that love is love. my partner and i love each other.

i do not think that love is any different than a man and a woman, and i have had both experiences. is when ithe issues hi comes to legal documents, when you file taxes, putting together a will, somebody who is married before a traditional marriage and now in a traditional marriage, do you know any difference in the legal documents you have to put together? caller: then writes that i had when i was married to a man, i have lost most of those rights with my partner. we do not get to file our taxes. i have to pay more in taxes. that is not beneficial to our families. that does not help my children. social security. we are not going to get each other's social security. harms the couple.

it harms the family. it takes away from your resources that we could be using to provide for the children. today'sd you listen to oral arguments? caller: all that. away? and your take caller: my impression of the the supreme court justices seemed hesitant, although i really liked the beginning when tthey were asking some thought-provoking questions. but iters decided this, do not believe in it was an accurate representation of the majority of the voters in the state of california. host: thanks for the call.

you are looking at the live scene outside the court. the snow is gone. these people lined up for oral arguments, which is expected to go a little longer than today, which will delay the same-state release of the audio of the arguments. that will happen about 2:00 tomorrow afternoon. we'll have it on c-span television, and also in c-span radio and posted immediately on our website. tomorrow's case, focusing on the defense of marriage act. a familiar face back inside the court. ted olson, a republican, supports the idea of same-sex marriage, and he spoke today defending the case and also opposing california's proposition 8. he spoke to reporters afterward. rule the court were to

thationers do not have -- would be a win, right? >> yes. there are four ways we can succeed. because california decided wasosition w8 unconstitutional, then you have the argument that no one could ande appealed this case opponents today did not have the right to carry it forward. if that is the case, the district court decision, finding proposition 8 unconstitutional, stands, and the governor and officials of california would be enjoined from enforcing it. that would be the end of proposition 8, or if the ninth circuit decided because of the circumstances in california, proposition 8 was unconstitutional, because of

those circumstances in california, the third way is that there are many states who have acknowledged the rights of gay and lesbians to raise children and to live together in households. the court could decide that structure is unconstitutional because california and those states have admitted that gay and lesbian individuals can live together and raise families and they do not have any defense on that fit the broadest argument made is that it is just wrong, it is not consistent with the ideals and a law and constitution of this country to take our gay and lesbians brothers and sisters and put them in a class and the bought night them rights that we give to everyone else. that is the broadest possible outcomes from any one of them would be a success in terms of overturning proposition 8. standing nextn, to david boies, who were on

opposite side when it came to bush v. gore. they're now on agreement. your calls and comments. fromve a chance to hear both sides of the aisle in their entirety in a few minutes. we will listen to ran the next from virginia. your view on the issue? caller: hi. i can oppose it on so many different fronts straight to use this equal protection rights or whenever, and i go against it because of natural law. a man and woman have natural rights, they produce children. two man cannot produce a child. two women cannot produce children. they are not equal. they are two different types of people. and itposed to it 100%,

is a more financial deal dealing with social security and federal taxes. it is more of a financial deal than more of a commitment that we love one another. it is more financial. thank you. tweet --re is this next is a curmudgeon, california. your state front and center. iller: i was calling to say pose the same section ban -- ban.g-sex than -- same-sex i would like to see my other couples in the state be able to get married. to tomorrow forward

because it would directly affect my marriage to be federally recognized by the government. one thing i have noticed news and people have not talked about aswith same-sex couples, thisal benefits, we get competed tax on the medical benefits. basically, any time we ask somebody -- husband will not be taxed and have a penalty tax put on to the benefits. opposite-sex couples do not have this issue. another host: issue we heard in the exchange, which took place during the middle of the hour and 20 minutes of arguments, the fact that you and your partner cannot have your own children. that led to a discussion and if you're in you're married in your 50's, does that mean you are still married -- did you watch

and listen to that part of the exchange? caller: did and i thought it was a fantastic question, and i was brought up that same question to people who work against same-sex marriage, and they are like, uh, t same-sexe sfac couples can adopt, that argument is ridiculous. host: 90 so much for being with us. charles cooper and back before the u.s. court, he spoke with reporters. is charles cooper. i represent the petitioners in this case. their parties and the lawyers have litigated this case for almost four years. point, the this

case, as you have seen, was presented to the court. the court asked some penetrating, measured questions of both sides, and now it is enhance of the courts. we're looking forward to hopefully a prompt response. as i said, this difficult, controversial issue. >> thank you. [indiscernible] >> there is no way to sum up my argument and a couple of sentiments -- sentences. we believe proposition 8 his constitutional and the place for the decision to be made is with the people, not the courts. >> what did you make of the questioning -- >> thank you very much. cooper.arles

a chance for you to hear the oral arguments coming up in a few minutes. we will show you the stakeouts with some of the principles. tonight at 8:00 eastern, today's proposition 8 case before the court, and tomorrow, as the court takes up this defense of marriage act, we expect that to be available at 2:00 tomorrow afternoon. it will be available on our website at c-span.org. saysr twitter page, quinn it is a shame this is even a conversation. love is love. if you do not like gay marriage? don't enter one. good afternoon. caller: i'd love you guys. i am pro. i support the issue. i believe proposition 8 is

unconstitutional. like i do not eat bacon, but i do not believe they can should be illegal in all households. they should be allowed to. i believe in the fundamental right to do so. i am not saying that the world or the united states should do it. not everybody should get married or not everybody should be gay or straight, but they should have the right to do so because the marriage itself comes with so many rights, medical, retirement, social security, if someone is in a, you can make decisions for them. apparently, you get taxed less as a couple than as a single individual. host: thanks for your call. view --s a similar revie

arkansas, god had, please. caller: thank you very much. i am opposed to st. essex reason for a simple reason. you read the holy bible. it is an abomination to god. all of us will stand in judgment, and it will be real bad what is going to happen to these people. host: did you listen to the arguments today? caller: yes. host: what was your takeaway? how deep you think the court will decide? the arguments, i think the court is going to oppose it. host: any other thoughts? caller: that is just what i thought. more calls.

adam is joining us, lansing, michigan. and being a christian african-american, i am appalled at today that we are at this point today. we have been there with slavery you have to understand, you have to be cautious with this, because at one point as a society, in the united states, we believed that slavery was the right thing to do. we believed it was legally justified. years later we look back on that and said, how can we tolerate that? there's the coup cox clan which has freedom of expression, and what do we say to those groups? we can learn that we have to tolerate differences between us as people. if you are going to go back and discriminate and be an equal to one group, you should do it a

board.the is it the same supreme court that said there should be a separation of church and state? how dare you come back now and impose religious beliefs on people. host: thanks for your call. we want to hear you on our facebook page. here's the question -- do you agree marriage should only be between a man and a woman? facebook.com/cspan. we will be hearing from larry from mississippi. go ahead. caller: yes. 18 states thouer shalt not allow [indiscernible] it is an abomination. ignoredhe bible being

in some cases, because of the preference that the people want. doing what they desire. i believe it is their desire it is not something they are born with. is a lifestyle. i abhor the situation that is going on today. i believe said the supreme court will rule it down will abide with proposition 8. if we strike down proposition 8 in california. in the majority statedstate there, their opinion in the polls. host: thanks for the call. kelly has this --

i want to thank our team outside the supreme court providing live picture since this morning as the demonstrations began early in the day, beginning to wind down, but many still lining up for tomorrow's defense of marriage act and another round. we will have coverage of that time,ow at 2:00 poeastern and today's proposition 8 case will be coming up in just a couple minutes, and a chance for you to hear tonight. also available anytime at c- span.org. up next, the stakeouts that took place with the principles outside the court following oral arguments. we will hear both sides and then take you back inside for a rebroadcast for the oral arguments which runs an hour and 20 minutes.

[cheers]

>> is this close enough? let's get over here. >> those of you who were in court today saw why i like it a lot better when this guy is on my side. we had a very thoughtful hearing. we appreciate the court's's attention to this issue. we appreciate that preparation of all the justices. there were a number of thoughtful and tough questions to both sides' trade it is now in the hands of the supreme court. it has been a long journey here for the last three and a half years, and i think we are all

greatly encouraged that we are within a few months of a final decision on this terribly important case. the most remarkable thing that happened in fear was that there was no attempt to defend the ban on gay and lesbian marriage. there was no indication of any harm. all that was said was that this is important constitutional right ought to be decided at the state level as opposed to the federal government. but as the -- but it is the constitution we have that guarantees fundamental rights in every state. when we are now down to the question of how do you establish marriage equality, you can see how far we have come in the last few years. >> you are going to hear in a moment from chris and cyndi and jeff and paul who have been at the beginning of this case right

up to now. they are the people about whom this case is about. they and others like them in california and throughout the united states. their right to be treated with respect and dignity and equality under the law in california and throughout the united states. i think one of the most important things that happen today was the fact that the american people were listening to the argument, and as david was saying, the other side, no one offered a defense for the awful discrimination that takes place when gay and lesbian citizens are not denied the right given to everyone else do have their family relationship recognized and respected equally. everybody, starting later this afternoon, people are going to be able to listen to these arguments and decide for themselves. we are confident where the american people are going with this. we do not know what the court is

going to do, but we are gratified that they listened, they heard, they asked hard questions, and there is no denying where the right is, and we hope the supreme court will come out in that way when they make this decision in june. now i want -- >> can i ask you, though -- based on the questions you feel confident that the court is ready to make a sweeping ruling in this case? they not based on the questions that the justices asked, i have no idea. the court has several ways to decide this case. from a very broad, sweeping conclusions with respect to the rights of our citizens in this country to narrow work ruling that would be limited to california, and the court never gives you an idea how they decide it. they did not today. they read the briefs. they care about the issues. we will see what the court will decide. david will answer more

questions, but i wanted people to hear from the individuals for whom this case is about, the real people, cyndi and chris, and jeff and paul, who have been everyone's hero, we are in love with them and we are so humbled by the fact that we get to speak for them in united states supreme court. perry, plaintiff. in this country, as children, we learned that there is a founding principle that all men and women are created equal. want this equality because this is a founding principle. unfortunately, with proposition 8, we learned there are a group of people who are not being treated equally. that was recognized by the court and the ninth circuit court. we look forward to that day when

proposition 8 is finally and officially eliminated and equality is restored to california. and i like all americans, i and live in the quality. i have great faith in it. more than anything i believe in love. 8, is aion discriminatory law that hurts people's, it hurts gays and lesbians in california, hurts the children we are raising, and for no good reason. it is our hope we can afford and remove this harm from society so that gays and lesbians in california can go back to their lives cut bidding equally alongside their neighbors with the same rights and protection that everyone else has. thank you all very much. >> my name is david, and for me from the beginning this case has been about securing their bright

to marry the person i love, and also having the equal access to the most important relationship that i know in life, and that is marriage. i simply look forward to the day when i can be married to the person i love in a family akris and sandy have. i cannot wait to start my family with jeff. >> i am jeffs. we're so pleased to have this case to present it to the supreme court today pick it has been the culmination of a long journey, and we are so thankful for ted olson and david boies. we are really looking forward to the court's decision. thank you. i would like to introduce you to our sons, spencer and elliott perry. >> hello, name is spitzer perry.

this is my twin brother, elliott, and we are the proud sons trade on behalf of myself and my twin brother, i want to say how incredibly proud we are of our parents. we love them, we love our family, and we look forward to the day when we will be treated equally just like our neighbor'' families. thank you so much. [applause] dave and i are willing to answer questions, but it is important to introduce chad griffin, the chairman or president of the human rights campaign, who has been with this case from the beginning, right from the very start. he recruited me and together we recruited david voies to handle this case. it has been almost four years since we filed the case. it has been four and a half

years since we first met and started talking about what we would do in this case. chad griffin, i cannot say enough wonderful things about chad and everything he has done for the rights of gays and lesbians in this country and what the american foundation for equal rights foundation, supported this campaign, and the human rights campaign have done for equal rights for gays and lesbians. chad? >> thank you. all i can do is thank ted and david to enable us to lift the partisan fail from which this issue has so often times been discussed at for the first time shine the spotlight on the human faces, the human faces of suffering. and chris and cyndi and paul and jeff and the boys will be able to look them in the face and tell them that they and their family deserve anything other than the quality of the law is something that i challenge anyone to do.

we are honored that our court system has worked and we have gone from the district court in northern california over these four years all the way here to washington today before the united states supreme court, and we're all cautiously optimistic to wait and see what this court will do. that you all very much. >> if you have any questions about -- other than how the court is going to decide the case -- [laughter] >> if the court were to rule that the petitioner does not have a standing, that would be a winner for you? >> i will mention briefly and david can. there are four ways we can succeed in this case. because the state of california decided that proposition 8 was unconstitutional, and although they were and forcing it, they quit defending it once the judd district judge ruled it was unconstitutional, you have the argument no one could have appealed the case and repentance

in court today who were the authors of that measure did not have the right to carry it forward. if that is the case, the district court decision, finding proposition 8 unconstitutional, stands and the governor and the officials of california would be enjoined from enforcing it. that would be the end of proposition 8. or the ninth circuit decided that because of the circumstances in california, proposition 8 was unconstitutional, because of those circumstances in california, the third way is that there are many states who have acknowledged the right the of gays and lesbians to raise children and to live together in households. the court could decide that structure is unconstitutional because california and the states have admitted that gays and lesbians can live together and have families and raise children and they did not have any defense on that. finally, the broadest argument we made is that it is just wrong, it is not consistent with

the ideals and all law and the constitution of this country to take our gay and lesbian brothers and sisters and put them in a class and deny them rights that we give to everyone else. that is the broadest possible outcome, and any one of those four outcomes would be assessed in terms of overturning proposition 8. you obviously are real veterans of this, but we could not find an argument anywhere -- >> i do not think you can read that much into the question. what they were doing is they were trying to probe both sides in terms of arguments. they did have these alternatives, and so i think the questions kept around some as they try to fight each of those alternatives. i think trying to read too much into those questions is a risky proposition. [indiscernible]

they were very reluctant to look at the broader issue? >> i think there were a number of questions about the broad issues. i think a number of the questions went directly to be a broadht to right on a 50-state basis. i do not think we should read into those, but they are exploring every one of the alternatives. they seemed energized and interested, if not excited, about this. how would you describe it? >> the supreme court is a marvelous institution. they hear the cases that the people bring to them, and their lawyers get to stand in front of the justice. anybody would realize we're standing within 10 or 12 feet of

the justices. they are dealing with the issues. they are asking hard questions. they're listening to the answers. they will then write an opinion that explains their decision. the court is a marvelous institution, how and they did not miss the opportunity to ask penetrating questions. the questions may not reveal how they are thinking, but they want to know the answers to those questions so they put every aspect to the test and the american people will be able to see how this works. i want to say one thing about david and i coming together for this case. we come from different perspectives on the political spectrum, so to speak. together isng intended to make the point to america that this is not a democratic issue or a republican issue or a conservative or liberal. this is an issue of american constitutional rights and that everyone in this country should agree on the things that we have been talking about.

we treat our citizens with equal -- with equality, with dignity, with fairness, the equal protection of the law is the protection of equal laws, and david and i are trying to make that point that it is not something that is partisan or anything like that pick it is about american values. >> thank you. terms of the outcome of this case, the question was whether this is a landmark case, or will it be a landmark case tree is so vital to so many of our citizens to be treated equally and with dignity and as david said, it is one of the major, maybe the major final civil rights battle that we're fighting in this country, and is so important to our values as americans that it be decided in the right way. thank you very much.

thank you very much. >> i want to say one thing. if 36,000 gays and lesbians were married, 18,000 couples, what will of harm if more couples get married? we have been married for five years. california has not dropped into the sea. nothing has happened in california.

they called it an experiment. we're not an experiment. we are a civil rights movement. we deserve our civil rights. it is not a matter if we are going to be married, as a matter of when this issue is gone to solve. we will win eventually because the public is on our side. thank you. tyler. is robin diane is that granddaughter of a former governor of california, governor olson. also i filed an amicus in this case in the perry case that was heard this morning on behalf of the women's equal rights and education fund. >> please identify yourselves and make sure you face that camera. >> my name is charles cooper.

i represent the petitioners. the parties and their lawyers have litigated this case for almost four years. case,y to this point, the as you have seen, was presented to the court. the court asked some penetrating, measured questions of both sides. and now is in the hands of the court. we're looking forward to a prompt response. as i said, this is a difficult, controversial issue. thank you. >> [indiscernible] >> there is no way to sum up my argument in a couple of sentences. we believe proposition 8 his constitutional and the plays for the decision to be made regarding redefining marriage is with the people, not within the courts. >> what do you make of the

questioning -- >> thank you very much. good afternoon. i am the general counsel for the perfect marriage coalition. today we feel we have presented the winning case for marriage. we think our lead counsel did an outstanding job, delivering arguments with great clarity, and we thought the hearing went very well. we would like to thank our supporters and the people who helped pass proposition 8 and have stuck with us through this long, lengthy legal battle of nearly four years. we look forward to a positive decision from the court that will uphold the will of the people. >> can you address some of the early questions -- [indiscernible]

concerning standing, and the questions about [indiscernible] are going to stand on the arguments we made in court today. we will not argue the case on the sidewalk, but we think we were able to say everything we wanted to say in this hearing. we thought the questions from the court were probing it, but very good questions, thoughtful questions, for both sides. i think we will see a very reasoned decision come out of this court. >> direction to the questions inside word that the court seems to be reluctant to issue a sweeping kind of role. what does that tell you in terms of how it will play out? what do you think will come out of this? >> without predicting a result, i think there are multiple options the court is exploring. we are going to have to see

which direction the court knows very different views of the case were presented by the proponents, challengers, and the solicitor general's office. the court will have to choose between those visions of the outcomes of this case. >> [indiscernible] decides those marriages should stand -- [indiscernible] >> that is not an issue because the california supreme court has said that marriage is created for the brief time it was legal remains recognized. battle startshole all over again? >> our position has been the political process, state by forum whereis the this debate -- and this is not something that should be imposed by the judiciary, by the courts. so a victory here for us means

that this issue returns to the people in their legislative and representatives where the debate belongs. >> [indiscernible] >> one of the big issues in this case is the integrity not only of states' rights, but in california, the integrity of the dish the process. if it is determined the voters, es pass bed by that would be a fatal blow to the initiative process. >> thank you. do you think we're done? >> yes. case, does in this that still leaves open the idea that this is a state's issue and that it could be a referendum again? >> i will not be able to make a prediction on that. thank you for your question.

hello. nice to see perry >> can you talk about when justice sotomayor track was asking about the harm that would be done by allowing same-sex couples to what is your answer to that? >> i think both sides have agreed in this case it is impossible to know any certainty the changes that would be worked on society by redefining a fundamental institution like marriage. that is something both sides agree on. oc thank you very much for your questions. >> reaction earlier today from

both sides in the supreme court's first case this week dealing with same-sex marriage issues. we aired the oral argument shortly after it was released at 1:00. if you missed it, we have it again. we will have it for you in a couple of minutes, and then we will air it tonight at 8:00 eastern. afterwards, we'll get your reactions. today on the c-span networks we showed you a number of rallies in support of and opposed to the issue. those rallies are available on our website. go to [indiscernible] howto c-span.org. a lawyer for the people who helped get that ban on the ballots of the court to uphold it as a ballot expression of the people's will. anthony kennedy suggested that

children also should be considered. samuel leadup told the obama administration's lawyer that it may be too soon to judge the effect of same-sex marriage. we will be back in front of the building tomorrow as the court hears the argument in the second case. attorneys will deliberate the federal defense of marriage act, defining america's as between a man and woman. coverage begins at 2:00 p.m. eastern, with same-day audio. live coverage on c-span and we will read-air the argument at 8:00 eastern. now the oral argument from the california proposition 8 case brought before the supreme court earlier today. >> we'll hear argument this morning in case hollingsworth v. perry. mr. cooper? >> thank you, mr. chief justice, and may it please the court: new york's highest court, in a case similar to this one, remarked that until quite recently, it was an accepted

truth for almost everyone who ever lived in any society in which marriage existed -- >> mr. cooper, we have jurisdictional and merits issues here. maybe it'd be best if you could begin with the standing issue. >> i'd be happy to, mr. chief justice. officialr, the proponents of proposition, the initiative, have standing to defend that measure before this court as representatives of the people and the state of california to defend the validity of a measure that they brought forward. >> have we ever granted standing to proponents of ballot initiatives? >> no, your honor, the court has not done that. but the court has never had before it a clear expression from a unanimous state's high

court that -- >> well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it. it's law for them just as it is for everyone else. so how are they distinguishable from the california citizenry in general? >> they're distinguishable, your honor, because the constitution of the state of california and its election code provide, according to the unanimous interpretation of the california supreme court, that the official proponents, in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative -- >> i guess the attorney general

of this state doesn't have any proprietary interest either, does he? >> no, your honor, nor did -- >> but -- but he can defend it, can't he -- >> nor did -- >> because the law says he can defend it. >> that's right, your honor. nor did the legislative leaders in the karcher case have -- >> could the state -- >> any particular enforcement -- >> could -- could the state assign to any citizen the rights to defend a judgment of this kind? >> justice kagan, that would be a -- a very tough question. it's -- it's by no means the question before the court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and -- and carefully detailed -- >> well, i just -- if you would on the hypothetical: could a state just assign to anybody the ability to do this? >> your honor, i think it very well might. it very well might be able to decide that any citizen could step forward and represent the interests of the state and the people in that state -- >> well, that would be -- i'm

sorry, are you finished? >> ok. that -- that may be true in terms of who they want to represent, but -- but a state can't authorize anyone to proceed in federal court, because that would leave the definition under article iii of the federal constitution as to who can bring -- who has standing to bring claims up to each state. and i don't think we've ever allowed anything like that. >> but, your honor, i guess the point i want to make is that there is no question the state has standing, the state itself has standing to represent its own interests in the validity of its own enactments. and if the state's public officials decline to do that, it is within the state's authority surely, i would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens --

>> well, the chief -- the chief justice and justice kagan have given a proper hypothetical to test your theory. but in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under california law. so these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen. >> but of course it is, and i think the key -- >> but can you tell me -- that's a factual background with respect to their right to put the ballot initiative on the ballot, but how does it create an injury to them separate from that of every other taxpayer to have laws enforced? >> your honor, the -- the question before the court, i would submit, is not the injury

to the individual proponents; it's the injury to the state. the -- the legislators in the karcher case had no individual particularized injury, and yet this court recognized they were proper representatives of the state's interests, the state's injury -- >> at least one of the amici have suggested that it seems counterintuitive to think that the state is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the state to individuals who have their own views. they proposed the ballot initiative because it was their individual views, not necessarily that of the state. so -- >> well -- >> justice scalia proffered the question of the attorney general. the attorney general has no personal interest. >> true. >> he has a fiduciary obligation.

>> the attorney general, whether it's a fiduciary obligation or not, is in normal circumstances the representative of the state to defend the validity of the state's enactments when they are challenged in federal court. but when that officer doesn't do so, the state surely has every authority and i would submit the responsibility to identify particularly in an initiative -- an initiative context. dutyy isn't the fiduciary requirement before the state can designate a representative important? >> your honor, i would submit to you that i don't think there's anything in article iii or in any of this court's decisions that suggest that a representative of a state must be -- have a fiduciary duty, but i would also suggest -- >> well, generally you don't need to specify it because

generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people. >> and your honor -- >> here these individuals >> and your honor -- >> here these individuals are not elected by the people or appointed by the people. >> and the california supreme court specifically addressed and rejected that specific argument. they said it is in the context when the public officials, the elected officials, the appointed officials, have declined, have declined to defend a statute. a statute that, by the way, excuse me, in this case a constitutional amendment, was brought forward by the initiative process. the court said it is essential to the integrity, integrity of the initiative process in that state, which is a precious right of every citizen, the initiative process in that state, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands.

and if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be invalidated. >> that's -- historically, i think, states, many states have what was called a public action. a public action is an action by any citizen primarily to vindicate the interest in seeing that the law is enforced. now, that's the kind of action i think that this court has interpreted the constitution of the united states, case in controversy, to say that it does not lie in the federal system. and of course, if that kind of action is the very kind that does not lie, well, then to say, but they really feel it's important that the law be enforced, they really want to vindicate the process, and these are people of special we found the five

citizens who most strongly want to vindicate the interest in the law being enforced and the process for making the law be enforced, well, that won't distinguish it from a public action. but then you say, but also they are representing the state. at this point, the dellinger brief which takes the other side of it is making a strong argument, well, they are really no more than a group of five people who feel really strongly that we should vindicate this public interest, and have good reason for thinking it. so you have read all these arguments that it's not really the agent and so forth. what do you want to say about it? >> what i want to say, your honor, is according to the california supreme court, the california constitution says in terms that among the responsibilities of official proponents, in addition to the many other responsibilities that they step forward and they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public officials which the initiative process is designed to control have refused to do it.

it might as well say it in those terms, your honor. >> counsel, if you want to proceed to the merits, you should feel free to do so. >> thank you very much, your honor. my -- my -- excuse me. as i was saying, the accepted truth -- excuse me. the accepted truth that -- that the new york high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. the question before this court is whether the constitution puts a stop to that ongoing democratic debate and answers this question for all states.

and it does so only if the respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue. the issues, the constitutional issues that have been presented to the court, are not of first impression here. in baker v. nelson, this court unanimously dismissed for want of a substantial federal question. >> mr. cooper, baker v. nelson was . -- 1971. the supreme court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. >> that is -- >> and the same-sex intimate conduct was considered criminal in many states in, so i don't think we can extract much in baker v. nelson. >> well, your honor, certainly i acknowledge the precedential limitations of a summary

dismissal. but baker v. nelson also came fairly fast on the heels of the loving decision. and, your honor, i simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial federal question if it is true, as the respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm. >> do you believe this can be treated as a gender-based classification? >> your honor, i -- >> it's a difficult question that i've been trying to wrestle with it.

>> yes, your honor. and we do not. we do not think it is properly viewed as a gender-based classification. virtually every appellate court, state and federal, with one exception, hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but i guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense. but we -- we agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that -- that classification can be viewed as being one of sexual orientation rather than -- >> outside of the --

outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? is there any other rational decision-making that the government could make? denying them a job, not granting them benefits of some sort, any other decision? >> your honor, i cannot. i do not have any -- anything to offer you in that regard. i think marriage is -- >> all right. if that -- if that is true, then why aren't they a class?

if they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? are you saying that the interest of marriage is so much more compelling than any other interest as they could have? >> no, your honor, we certainly are not. we -- we are saying the interest in marriage and the -- and the state 's interest and society's interest in what we have framed as responsible pro -- procreation is -- is vital, but at bottom, with respect to those interests, our submission that same-sex couples and opposite-sex couples are simply not similarly situated. but to come back to your precise question, i think, justice sotomayor, you're probing into whether or not sexual orientation ought to be viewed

as a quasi-suspect or suspect class, and our position is that it does not qualify under this court's standard and -- and traditional tests for identifying suspectedness. the -- the class itself is -- is quite amorphous. it defies consistent definition as -- as the plaintiffs' own experts were -- were quite vivid on. it -- it does not -- it -- it does not qualify as an accident of birth, immutability in that -- in that sense. again, the plaintiffs -- don'tyou -- so what -- i quite understand it. if you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them? >> well, your honor, i would think that -- that -- i think

it's a -- it's a very different question whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether thist they qualify under court's traditional test for suspectedness. and -- and the hypothetical i understood you to be offering, i would submit would create -- it would -- unless there's something that -- that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that -- that is not what we think is at the -- at the root of the traditional definition of marriage. >> mr. cooper, could i just understand your argument. in reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples

cannot, and the state's principal interest in marriage is in regulating procreation. is that basically correct? >> i -- your honor, that's the essential thrust of our -- our position, yes. >> is -- is there -- so you have sort of a reason for not including same-sex couples. is there any reason that you have for excluding them? saying, words, you're well, if we allow same-sex couples to marry, it doesn't serve the state's interest. but do you go further and say that it harms any state interest? goyour honor, we -- we further in -- in the sense that it is reasonable to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms to that institution and to the interests that society has always -- has -- has always used that institution to address. but, your honor, i --

>> well, could you explain that a little bit to me, just because i did not pick this up in your briefs. what harm you see happening and when and how and -- what -- what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work? >> once again, i -- i would reiterate that we don't believe that's the correct legal question before the court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -- >> well, then are -- are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? so you're conceding that. >> no, your honor, no. i'm not conceding that. >> well, but, then it -- then it seems to me that you should have

to address justice kagan's question. >> thank you, justice kennedy. i have two points to make on them. the first one is this: the plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. and among those real-world consequences, your honor, we would suggest are adverse consequences. but consider the california voter, in, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be.

that is reason enough, your honor, that would hardly be irrational for that voter to say, i believe that this experiment, which is now only fairly four years old, even in massachusetts, the oldest state that is conducting it, to say, i think it better for california to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing. >> mr. cooper, let me -- let me give you one -- one concrete thing. i don't know why you don't mention some concrete things. if you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -- there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not.

some states do not -- do not permit adoption by same-sex couples for that reason. >> california -- no, california does. >> i don't think we know the answer to that. do you know the answer to that, whether it -- whether it harms or helps the child? >> no, your honor. and there's -- there's -- >> but that's a possible deleterious effect, isn't it? >> your honor, it -- it is certainly among the -- >> it wouldn't be in california, mr. cooper, because that's not an issue, is it? in california, you can have same-sex couples adopting a child. >> that's right, your honor. that is true. and -- but -- but, your honor, here's -- here's the point -- >> i -- it's true, but irrelevant. they're arguing for a nationwide rule which applies to states other than california, that every state must allow marriage by same-sex couples. and so even though states that believe it is harmful -- and i take no position on whether it's harmful or not, but it is

certainly true that -- that there's no scientific answer to that question at this point in time. >> and -- and that, your honor, is the point i am trying to make, and it is the respondents' responsibility to rational basis review, not only that -- that there clearly will be no harm, but that it's beyond debate that there will be no harm. defendingper, you are -- you are opposing a judgment that applies to california only, not to all of the states. >> that's true, your honor. and if there were a way to cabin the arguments that are being presented to you to california, then the concerns about redefining marriage in california could be confined to california, but they cannot, your honor. >> i -- i think there's -- there's substantial -- that there's substance to the point that sociological information is new. we have five years of

information to weigh against, years of history or more. on the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. there are some, children in california, according to the red brief, that live with same- sex parents, and they want their parents to have full recognition and full status. the voice of those children is important in this case, don't you think? >> your honor, i certainly would not dispute the importance of that consideration. that consideration especially in the political process, where this issue is being debated and

will continue to be debated, certainly, in california. it's being debated elsewhere. but on that -- on that specific question, your honor, there simply is no data. in fact, their expert agreed there is no data, no study, even, that would examine whether or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the state of california to recognize, support, and honor same-sex relationships and their families. there is simply no data at all that would permit one to draw -- draw that conclusion. i would recall, justice kennedy, the point made in romer, that under a rational basis of review, the provision will be sustained even if it operates to the disadvantage of a group, if it is -- if it otherwise advances rationally a legitimate state interest. >> mr. cooper, we will afford you more time. you shouldn't worry about losing your rebuttal time, but please continue on. >> oh --

>> as long as you are on that, then i would like to ask you this: assume you could distinguish california, suppose we accept your argument or accept justice scalia's version of your argument and that distinguishes california. now, let's look at california. what precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? i mean, there are lots of people who get married who can't have children. to take a state that does allow adoption and say -- there, what is the justification for saying no gay marriage? certainly not the one you said, is it? >> you're -- >> am i not clear? look, you said that the problem is marriage; that it is an institution that furthers procreation. >> yes, your honor. >> and the reason there was

adoption, but that doesn't apply to california. so imagine i wall off california and i'm looking just there, where you say that doesn't apply. now, what happens to your argument about the institution of marriage as a tool towards procreation? inen the fact that, california, too, couples that aren't gay but can't have children get married all the time. >> yes, your honor. the concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. suppose, in turn -- >> well, suppose a state said, mr. cooper, suppose a state said that, because we think that the

focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of . would that be constitutional? >> no, your honor, it would not be constitutional. >> because that's the same state interest, i would think, you know. if you are over the age of, you don't help us serve the government's interest in regulating procreation through marriage. so why is that different? >> your honor, even with respect to couples over the age of, it is very rare that both couples -- both parties to the couple are infertile, and the traditional -- [laughter] >> no, really, because if the couple -- i can just assure you, if both the woman and the man are over the age of, there are not a lot of children coming out of that marriage. [laughter] >> your honor, society's -- society's interest in

responsible procreation isn't just with respect to the procreative capacities of the couple itself. imposestal norm, which the obligations of fidelity and monogamy, your honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -- >> actually, i'm not even -- >> i suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, are you fertile or are you not fertile? [laughter] >> i suspect this court would hold that to be an unconstitutional invasion of privacy, don't you think? >> well, i just asked about age. i didn't ask about anything else. that's not -- we ask about people's age all the time. >> your honor, and even asking about age, you would have to ask if both parties are infertile. again -- >> strom thurmond was -- was

not the chairman of the senate committee when justice kagan was confirmed. [laughter] >> very few men -- very few men outlive their own fertility. so i just -- >> a couple where both people are over the age of -- of 55 -- >> i -- >> a couple where both people are over the age of . -- of 55 -- >> and your honor, again, the marital norm which imposes upon that couple the obligation of fidelity -- >> i'm sorry, where is this -- >> i'm sorry, maybe you can finish your answer to justice kagan. >> i'm sorry. >> it's designed, your honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage. outside of that marriage. that's the marital -- that's the marital norm. society has an interest in

seeing a -year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment. so that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world. that. cooper, we said somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation. >> your honor is referring, i'm sure, to the turner case, and -- >> yes. >> i think that, with due respect, justice ginsburg, way over-reads -- way over-reads turner against safley.

that was a case in which the prison at issue -- and it was decided in the specific context of a particular prison where there were both female and male inmates, many of them minimum security inmates. it was dealing with a regulation, your honor, that had previously permitted marriage in the case of pregnancy and childbirth. the court -- the court here emphasized that, among the incidents of marriage that are not destroyed by that -- at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of -- of the children. so that -- >> thank you, mr. cooper. >> thank you, mr. chief justice. >> mr. olson? >> thank you, mr. chief justice, and may it please the court: i know that you will want me to spend a moment or two addressing the standing

question, but before i do that, i thought that it would be important for this court to have proposition put in context, what it does. it walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not ok. >> mr. olson, i cut off your friend before he could get into the merits. >> i was trying to avoid that, your honor. >> i know -- [laughter] >> well, i think it's only fair to treat you the same. perhaps you could address your jurisdictional argument? >> yes. i think that our jurisdictional argument is, as we set forth in the brief, california cannot create article iii standing by designating whoever it wants to defend the state of california in connection with the ballot.

>> but this is not whoever it wants. these are five proponents of -- of the measure, and if we were to accept your argument, it would give the state a one-way ratchet. ae state could go in and make defense, maybe a half-hearted defense of the statute, and -- and then when the statute is held invalid, simply -- simply leave. on the other hand, if -- if the state loses, the state can appeal. asthis is a one-way ratchet it favors the state, and allows governors and other constitutional officers in different states to thwart the initiative process. >> that's the -- that's the way the california supreme court saw it with respect to california law. the governor and the attorney general of california are elected to act in the best interests of the state of california. professional judgment given their obligations as officers of the state of california.

the california supreme court has said that proponents -- and by the way, only four of the five are here. dr. tam withdrew from the case because of some -- many things he said during the election campaign. >> well, mr. olson, is it your position that the only people who could defend a ballot, a law that's adopted in california through the ballot initiative are the attorney general and the governor, so that if the attorney general and the governor don't like the ballot initiative, it will go undefended? is that your position? >> i don't -- i don't think it's quite that limited. i think one of your colleagues suggested that there could be an officer appointed. there could be an appointee of the state of california who had responsibility, fiduciary responsibility to the state of california and the citizens of california, to represent the state of california along -- >> who -- who would appoint him? the same governor that didn't want to defend the plebiscite? >> well, that happens all the time. as you recall in the case of -- well, let's not spend too much

time on independent counsel provisions, but -- [laughter] >> the governor -- the government of the state of california frequently appoints an attorney where there's a perceived conflict of interest -- >> i suppose -- >> and that person would have a responsibility for the state and might have responsibility for the attorneys' fees. >> i suppose there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages, or other people. we seem to be addressing the case as if the only options are the proponents here or the state. i'm not sure there aren't other people out there with individual personalized injury that would satisfy article iii. >> there might well be in -- in a different case. i don't know about this case. if there was, for example, this was an initiative measure that allocated certain resources of the state of california and the people -- maybe it was a binary system of people got resources and other people didn't get resources, there could be standing. someone would show actual injury.

the point, i guess, at the bottom of this is the supreme court, this court, decided in raines v. byrd that congress couldn't specify members of congress in that context even where the measure depleted or diminished powers of congress -- >> the states are not bound by the same separation of powers doctrine that underlies the federal constitution. you could have a federal initiative -- you could not have a federal initiative, for example. start with the state having the standing to defend the constitutionality of a state law beyond dispute. who represents the state? thehe state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials.

knowhole point, and you this better than i do because you are from california -- the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious. if you reject the proposition about what is left is the proposition that state law can choose some other person, some other group to defend the constitutionality of a state law. and the california supreme court has told us that the in this case are precisely those people. how do you get around that? >> that is exactly what these -- the california supreme court thought. the california supreme court thought it could decide the proponents, whoever they were, and this could be 25 years after the election, it could be one of the performance, four of the proponents, they could have the interest of the state because they have no fiduciary responsibility.

they may be incurring attorney'' fees on behalf of the state or on behalf of themselves, but they have no official responsibility to the state. and my only argument, and i know it is a close one because california thinks this is a system that would be the fault system i'm suggesting that from your decisions with respect to article 3, it takes more than that. >> mr. olson, i think you're not answering the fundamentals here. in the amica brief that sets forth the fiduciary duty. the assumption is that there are not executive officials who want to defend the law. no one is going to do it. how do you get a lot offended in that situation? >> i do not have an answer to that question, unless there is an appointment process either built into the system where it is an officer -- >> why is it in dispute that the appointment process, the ballots initiators have now become that body?

thatd that is the argument our opponents make. but it must be said that it happens all the time that federal officials and state officials decide not to enforce a statute, to enforce a statute in certain ways. we do not then come in and decide that someone else ought to be in court. >> the brief says that of course to appoint people. it is not just that you appoint. it is that the state's interest when you uphold the law is the interest in executing the laws of the state. all you have to do is give a person that interest. but when the person has the interest of defending this law as opposed to defending the law of state of california, there can be all kinds of conflicts. that is what i got out of the brief. give the person that interest. and that, they say, is what is

missing here. i mean, they say it is here, and you say it is missing. why is it missing? >> because you are not an officer of the state of california and you do not have a fiduciary duty to visit california and you are not bound by the ethical rules of this tip of california and there could be conflicts of interest. and you could be incurring enormous legal fees on behalf of the state when it states goes that route. >> you should feel free to move on to the merits. >> thank you, your honor. as i pointed out, this is the end -- a measure that walls of the institution of marriage, which is not society's right. it is an individual's right that this court has said again and again, the right to the relationship of marriage is a personal right, the right of privacy, association, liberty, and the pursuit of happiness.

and the cases in which you have described the right to get married under the constitution, you have described it as marriage, procreation, family, other things like that. the procreation aspect, the responsibility or the ability or the interest integration is not a part of the right to get married. >> i'm not sure that it is right to view this as excluding a particular group. when the institution of marriage developed historically, people did not say, let's have this institution, but keep out homosexuals. the institution developed to serve persons that by their nature did not include homosexual couples. servedu can say that it some of the other interests where it makes sense to include them, but not all the interests. it seems to me that if your friend argues on the the side that you have an institution that pursues additional interest, you do not have to include everybody just because

some other aspects of it can be applied to them. >> there are a couple of to that, it seems to me. in this case, that decision to exclude gays and lesbians was made by the state of california. >> that is only because proposition 8 kaine 140 days after the california supreme court issued its decision. >> that is right >> and don't you believe is right to view it as a change parties about -- the california supreme court? >> the california supreme court decided that equal protection and due process clause of that california constitution did not permit excluding gays and lesbians from the right to get married. >> you led me right into a question i was going to ask. california's supreme court does not decide what the law is. that is what we decide, right? we decide -- we do not prescribe for the future. we decide what the law is. when did it become

unconstitutional to exclude homosexual couples from marriage? 1791? 1868 when the 14th amendment was adopted? sometime after baker where we said it did not even raise a substantial federal question? when did the law become this? the would like to enter form of a rhetorical question. when did it become unconstitutional to prohibit interracial marriages? >> the question for that one, at the time that the equal protection clause was adopted. that is absolutely true. but don't give me a question to my question. [laughter] became you think it unconstitutional? has it always been?

>> when the california supreme court face the decision it had never faced before of, does excluding gays and lesbians based upon their status as homosexuals, is it constitutional -- ? >> that is not when it became ogs -- unconstitutional. that is when it acted in an unconstitutional manner. when did it become unconstitutional to prohibit ghaith from marean? >> -- days from marean? >> is it true that if the attorney general and the governor do not like the ballot

the case before you today, california decided that after the california supreme court decided that individuals had a right to get married irrespective of their orientation, californians decided in proposition 8 that they did not want those people to be able to. >> your case would be different if your case was enacted into law prior? it in onestinguishes respect. if marriage is a fundamental right and we are making a classification bases -- based on the status of individuals that this court has decided that gays and lesbians are defined by their status,

there is no question about it. >> so it would be unconstitutional even in states that did not allow civil unions? >> we do, we submit that. you could write a narrower decision. >> ok. so i want to know how long it has been unconstitutional in those -- >> i don't -- when -- it seems to me, justice scalia, that -- >> it seems to me you ought to be able to tell me when. otherwise, i don't know how to decide the case. >> i submit you've never required that before. when you decided that -- that individuals -- after having decided that separate but equal schools were permissible, a decision by this court, when you decided that that was unconstitutional, when did that become unconstitutional? >> 50 years ago, it was ok? >> i can't answer that question, and i don't think this court has ever phrased the question in that way. >> i can't either. that's the problem. that's exactly the problem. >> but what i have before you now, the case that's before you today, is whether or not california can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that

-- that marriage gives them. an-- it is -- it is not answer to say procreation or anything of that nature, because procreation is not a part of the right to get married. >> that's really -- that's a broad argument that you -- that's in this case if the court wants to reach it. the rationale of the ninth circuit was much more narrow. thatsically said california, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn't go far enough, and it's being penalized for not going far enough. that's a very odd rationale on which to sustain this opinion. >> this court has always looked into the context. in, for example, the new orleans case involving the gambling casinos and advertising, you look at the context of what was permitted, what was not permitted, and does that rationalization for prohibiting in that case the advertising, in this case prohibiting the relationship of

marriage, does it make any sense in the context of what exists? >> seriously, mr. olson, if california provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if california -- if the state -- if the case before us now were from a state that doesn't provide any of those benefits to same-sex couples, this case would come out differently? >> no, i don't think it would come out differently, because of the fundamental arguments we're making with respect to class-based distinctions with respect to a fundamental right. however, to the extent that my opponent, in the context of california, talks about child- rearing or adoptions or -- or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of california, because california's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in california, and the the other side

specifically said and testified better offould be when their parents were allowed to get married. >> i don't think you can have it both ways. either this case is the same, this would be the same if this were utah or oklahoma, or it's different because it's california and california has provided all these -- >> i think that it's not that we're arguing that those are inconsistent. if the fundamental thing is that denying gays and lesbians the right of marriage, which is fundamental under your decisions, that is unconstitutional, if it is -- if the state comes forth with certain arguments -- utah might come forth with certain justifications. california might come forth with others. but the fact is that california can't make the arguments about adoption or child-rearing or people living together, because they have already made policy decisions. so that doesn't make them inconsistent. >> so it's just about -- it's just about the label in this case. >> the label is --

>> same-sex couples have every other right, it's just about the label. >> the label "marriage" means something. even our opponents -- >> sure. if you tell -- if you tell a child that somebody has to be their friend, i suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. and that's it seems to me what the -- what supporters of proposition 8 are saying here. you're -- all you're interested in is the label and you insist on changing the definition of the label. >> it is like you were to say you can vote, you can travel, but you may not be a citizen. there are certain labels in this country that are very, very critical. you could have said in the loving case, what -- you can't get married, but you can have an interracial union. everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know -- >> how do we know -- how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right? that's -- you've emphasized that and you've said, well,

it's because of the emotional commitment. maybe it is the procreative aspect that makes it a fundamental right. >> but you have said that marriage is a fundamental right with respect to procreation and at the same level getting married, privacy -- you said that in the zablocki case, you said that in the lawrence case, and you said it in other cases, the skinner case, for example. marriage is put on a pro -- equal footing with procreational aspects. and your -- this court is the one that has said over and over again that marriage means something to the individual -- the privacy, intimacy, and that it is a matter of status and recognition in this -- >> mr. olson, the bottom line that you're being asked -- and it is one that i'm interested in the answer -- if you say that marriage is a fundamental right, what state restrictions could ever exist? meaning, what state restrictions with respect to the number of people, with respect to -- that

could get married -- the incest laws, the mother and child, assuming that they are the age -- i can -- i can accept that the state has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left? >> well, you've said -- you've said in the cases decided by this court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. and if you -- if a state prohibits polygamy, it's prohibiting conduct. if it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. it's selecting them as a class, as you described in the romer case and as you described in the lawrence case and in other cases, you're picking out a group of individuals to deny

them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the vmi case. there's a -- there's a different -- >> is there any way to decide this case in a principled manner that is limited to california only? >> yes, the ninth circuit did that. you can decide the standing case that limits it to the decision of the district court here. you could decide it as the ninth circuit did -- >> the problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. whatever that was. [laughter] >> but you're -- you're doing so in a -- in a case where the opinion is very narrow. basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -- on standing.

i just wonder if -- if the case was properly granted. >> oh, the case was certainly properly granted, your honor. i mean, there was a full trial of all of these issues. there was a 12-day trial, the judge insisted on evidence on all of these questions. this -- this is a -- >> but that's not the issue the ninth circuit decided. >> the issue -- yes, the ninth circuit looked at it and decided because of your decision on the romer case, this court's decision on the romer case, that it could be decided on the narrower issue, but it certainly was an appropriate case to grant. and those issues that i've been describing are certainly fundamental to the case. and i don't want to abuse the court's indulgence, that what i -- you suggested that this is uncharted waters. it was uncharted waters when this court, in 1967, in the loving decision said that interracial -- prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional. >> it was hundreds of years old

in the common law countries. this was new to the united states. >> and what we have here -- >> so -- so that's not accurate. >> i respectfully submit that we've under -- we've learned to understand more about sexual orientation and what it means to individuals. guess the language that justice ginsburg used at the closing of the vmi case is an important thing, it resonates with me, "a prime part of the history of our constitution is the story of the extension of constitutional rights to people once ignored or excluded." >> thank you, counsel. general verrilli?

>> mr. chief justice, and may it please the court -- proposition 8 denies gay and lesbian persons the equal protection of the laws -- >> you don't think you're going to get away with not starting with the jurisdictional question, do you? [laughter] >> as an amicus, i thought i might actually, your honor. and -- and, of course, we didn't take a position on standing. we didn't -- we didn't brief it, we don't have a formal position on standing. but i will offer this observation based on the discussion today and the briefing. we do think that while it's certainly not free of doubt, that the better argument is that there is not article iii standing here because -- i don't want to go beyond just summarizing our position, but -- because we don't have a formal position. but we do think that with respect to standing, that at this point with the initiative process over, that petitioners really have what is more in the nature of a generalized grievance and because they're not an agent of the state of california or don't have any other official tie to the state that would -- would result in

any official control of their litigation, that the better conclusion is that there's not article iii standing here. >> well, tomorrow you're going to be making a standing argument that some parties think is rather tenuous, but today, you're -- you're very strong for article iii standing? >> well, we said this was a -- we said this was a close question, and our interests are, justice alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the court tomorrow. two respect to the merits, fundamental points lead to the conclusion that there's an equal protection violation here. first, every warning flag that warrants exacting scrutiny is present in this case. and petitioners' defense of proposition 8 requires the court to ignore those warning flags and instead apply highly deferential lee optical rational basis review as though proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a

law. >> general verrilli, i could understand your argument if you were talking about the entire united states, but you -- your brief says it's only eight or nine states, the states that permit civil unions, and that's -- brings up a question that was asked before. madestate that has considerable progress has to go all the way, but at least the government's position is, if it has done -- the state has done absolutely nothing at all, then it's -- it can do -- do as it will. >> that gets to my second point, your honor, which is that think the problem here with the arguments that petitioners are advancing is that california's own laws do cut the legs out from under all of the

justifications that petitioners have offered in defense of proposition 8, and i understand your honor's point and the point that justice kennedy raised earlier, but i do think this court's equal protection jurisprudence requires the court to evaluate the interests that the state puts forward, not in a vacuum, but in the context of the actual substance of california law. and here, with respect to california law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction, and therefore, the argument about the state's interests that -- that petitioners advance have to be tested against that reality, and they just don't measure up. none of the -- >> well, the argument -- >> none of the -- >> justice breyer. >> what is the one -- look, a state that does nothing for gay couples hurts them much more than a state that does something. and, of course, it's true that it does hurt their argument that they do quite a lot, but

which are their good arguments, in your opinion? i mean, take a state that really does nothing whatsoever. they have no benefits, no nothing, no nothing. ok? and moreover, if -- if you're right, even in california, if they have -- if they're right or, you know, if a pact is enough, they won't get federal benefits, those that are tied to marriage, because they're not married. does so a state that nothing hurts them much more, and yet your brief seems to say it's more likely to be justified under the constitution. i'd like to know with some specificity how that could be. >> well, because you have to measure the -- under the standard of equal protection scrutiny that we think this court's cases require. >> i know the principle, but i'm saying which are their good arguments, in your opinion, that

would be good enough to overcome for the state that does nothing, but not good enough to overcome california where they do a lot? >> well, we -- what we're -- what we're saying about that is that we're not prepared to close the door to an argument in another state where the state's interests haven't cut the legs out from under the arguments. and i think -- i suppose the caution rationale that mr. cooper identified with respect to the effects on children, if it came up in a different case with a different record, after all here, this case was litigated by petitioners on the theory that rational basis applied and they didn't need to show anything, and so they didn't try to show anything. our view is that heightened scrutiny should apply, and so i don't want to -- i don't want to kid about this, we understand, that would be a very heavy burden for a state to meet. all we're suggesting is that in a situation in which the state interests aren't cut out from under it, as they -- as they are here, that that issue ought to remain open for a future case. and i -- and i think the caution rationale would be the

one place where we might leave it open. because you can't leave it open in this case. >> general, there is an irony in that, which is the states that do more have less rights. >> well -- well, i understand that, your honor, but i do think that you have to think about the claim of right on the other side of the equation here. and in this situation, california -- the argument here that -- that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can't stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from -- >> you want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of proposition 8. but what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the concept of -- of same-sex marriage. the one thing that the parties in this case seem to agree on is that marriage is very important.

it's thought to be a fundamental building block of society and its preservation essential for the preservation of society. traditional marriage has been around for thousands of years. same-sex marriage is very new. i think it was first adopted in the netherlands in 2000. so there isn't a lot of data about its effect. and it may turn out to be a -- a good thing; it may turn out theto be a good thing, as supporters of proposition 8 apparently believe. but you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet?

i mean we -- we are not -- we do not have the ability to see future. on a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials? >> i have four points i would like to make to that in response to that, justice alito, and i think they are all important. first, california did not through proposition 8 do what my friend mr. cooper said and push a pause button. they pushed a delete button. this is a permanent ban. it's in the constitution. it's supposed to take this issue out from the legislative process. so that's the first point. second -- >> well, just in response to that, of course the constitution could be amended, and i think i read that the california constitution has been amended 500 times. >> but the -- >> so it's not exactly like the u.s. constitution. >> but it does -- of course not. but it is -- but the aim of this is to take it out of the normal legislative process. the second point is that, with respect to concerns that your honor has raised, california has been anything but cautious. it has given equal parenting rights, equal adoption rights. those rights are on the books in california now, and so the interest of california is -- that petitioners are

articulating with respect to proposition 8, has to be measured in that light. >> yeah, but the rest of the country has been cautious. >> and that's why -- >> and we're -- and you are asking us to impose this on the whole country, not just california. >> no, respectfully justice scalia, we are not. our position is narrower than that. our position -- the position we have taken, is about states, it applies to states that have, like california and perhaps other states, that have granted these rights short of marriage, but -- >> i don't want to -- i want you to get back to justice alito's other points, but is it the position of the united states that same-sex marriage is not required throughout the country? >> we are not -- we are not taking the position that it is required throughout the country. we think that that ought to be left open for a future adjudication in other states that don't have the situation

california has. >> so your -- your position is only if a state allows civil unions does it become unconstitutional to forbid same- sex marriage, right? >> i see my red light is on. >> well, you can go on. >> thank you. our position is -- i would just take out a red pen and take the word "only" out of that sentence. when that is true, then the equal protection clause forbids the exclusion of same-sex marriage, and it's an open question otherwise. and if i could just get to the third reason, which i do think is quite significant. the argument here about caution is an argument that, well, we need to wait. we understand that. we take it seriously. but waiting is not a neutral act. waiting imposes real costs in the here and now. it denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that petitioners focus on is at the heart of the marriage relationship. >> but you are willing to wait in the rest of the country. you saying it's got to happen

right now in california, but you don't even have a position about whether it's required in the rest of the country. >> if -- with respect to a state that allows gay couples to have children and to have families and then denies the stabilizing effect -- >> so it's got to happen right away in those states where same-sex couples have every legal right that married couples do. >> well, we think -- >> but you can wait in states where they have fewer legal rights. >> what i said is it's an open question with respect to those states and the court should wait and see what kind of a record a state could make. but in california you can't make the record to justify the exclusion. woulde fourth point i make on this, recognizing that these situations are not -- >> how would the record be different elsewhere? >> well, they might try to make a different record about the effects on children. but there isn't a record to that

effect here. and the fourth point i would make, and i do think this is significant, is that the principal argument in 1967 with respect to loving and that the commonwealth of virginia advanced was -- well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. and i think the court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. and so -- so i do think that's quite fundamental. >> can i ask you a problem about -- >> sure. >> i -- it seems to me that your position that you are supporting is somewhat internally inconsistent. we see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. and the other argument is proposition 8 harms children by not allowing same-sex couples to marriage. which is it? >> well, i think what proposition 8 does is deny the long-term stabilizing effect that marriage brings. that's -- that's the argument for -- for marriage, that -- >> but you also tell me there has been no harm shown to children of same-sex couples. >> california -- there are

37,000 children in same-sex families in california now. andr parents cannot marry that has effects on them in the here and now. a stabilizing effect is not there. when they go to school, they have to, you know -- they don't have parents like everybody else's parents. reals a real effect, a cost in the here and now. >> well, the real cost right now would be you're asking me to write these words -- "a state that has a pact has to say 'marriage,'" but i'm not telling you about states that don't. well, i would guess there is a real-world effect there, too. that states that are considering pacts will all say "we won't do it," or not all, but some would. and that would have a real effect right now. and at the moment, i'm thinking it's much more harmful to the gay couple, the latter than the former. but you won't give me advice as the government as to how to deal with that.

>> well, we -- we think that, as i started my argument, your honor, that all the warning flags for exacting equal protection scrutiny are present here. this is a group that has suffered a history of terrible discrimination. the petitioners don't deny it. petitioners said at the podium today that there is no justification for that discrimination in any realm other than the one posed in this case, and the -- and so when those two factors are present, those are paradigm considerations for the application of heightened scrutiny, and so i don't want to suggest that the states that haven't taken those steps -- >> but they are not the only ones. >> -- that states that haven't taken this step, that they are going to have an easy time meeting heightened scrutiny, which i think has to apply -- >> suppose one of those states repeals its civil union laws? >> it would be a different case. and all i'm saying is that the door ought to remain open to that case, not that it would be easy for the state to prevail in that case.

>> thank you, general. mr. cooper, to keep things fair, i think you have 10 minutes. >> thank you very much. >> and you might address why you think we should take and decide this case. >> yes, your honor, and that is the one thing on which i wholeheartedly agree with my friend mr. olson. this case was properly -- is now properly before the court and was properly granted, even if, even if, your honor, one could defend the specific judgment below for the ninth defense that i haven't heard offered to this court. judicial redefinition of marriage even in -- even if it can be limited to california, is well worthy of this court's attention, particularly, your honor, as it come from a single district court judge in a single jurisdiction. i would also like -- >> i think that begs your -- mr. olson doesn't really focus on this. if the issue is letting the states experiment and letting

the society have more time to figure out its direction, why is taking a case now the answer? >> because, your honor -- >> we let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954. >> your honor, it is hard to -- >> and now we are only talking about, at most, four years. >> it is hard to imagine a case that would be better, or more thoroughly, i should say, at least, briefed and argued to this court. toot's too late for that, late for that now, isn't it? i mean, we granted cert. i mean, that's essentially asking, you know, why did we grant cert. we should let it percolate for another -- you know, we -- we

have crossed that river, i think. >> and in this particular case, to not grant certiorari is to essentially bless a judicial decision that there -- that at least in the state of california, the people have no authority to step back, hit the pause button, and allow the experiments that are taking place in this country to further mature; that in fact, at least in california -- and it's impossible to limit this ruling, your honor, even to california, even the solicitor argument, he says, applies to at least eight states. it's impossible to limit these propositions to any particular jurisdiction, so this court would be making a very real decision with respect to same- sex marriage if it should simply decide to dismiss the

writ as improvidently granted, justice kennedy. andlet's just step back just consider for a moment the solicitor general's argument. he is basically submitting to the court that essentially the one compromise that is not available to the states is the one that the state of california has undertaken; that is, to go as far as the people possibly can in honoring and recognizing the families and the relationships of same-sex couples, while still preserving the existence of traditional marriage as an institution. that's the one thing that's off the table. >> i thought he was saying, mr. cooper, that it's not before the court today. and remember loving against virginia was preceded by the mclaughlin case. so first there was the question of no marriage, and then there

was marriage. so, in that sense i understood the solicitor general to be telling us that case is not before the court today. >> forgive me, justice ginsburg. the case of -- what case isn't before the court? >> i think it was mclaughlin against florida. >> yes. >> it was cohabitation of people of different races. >> certainly. >> and the court took that case and waited to reach the merits case. >> it's -- yes, your honor. and well, forgive me, your honor. i'm not sure i'm following the

court's question. >> i may -- my memory may be wrong, but i think the case was that people of different races were arrested and charged with the crime of interracial cohabitation. and the court said that that was invalid. >> yes. >> unlawful. >> yes. thank you, your honor. forgive me. and, you know, i'm glad that counsel for the respondents mentioned the loving case, because what this court -- what this court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage. that's what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable. and with all due respect to counsel and to the respondents,

that is not a hard question. if, in fact, it is true, as the people of california believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that's why marriage itself is the institution that society has always used to regulate those heterosexual, procreative -- procreative relationships. counsel -- the solicitor general has said that the ban that the proposition erects in california is permanent. isl, it's -- certainly that not the view of the respondents

and what we read every day. this is not an issue that is now at rest in the state of california, regardless -- well, unless this court essentially puts it to rest. that democratic debate, which is roiling throughout this country, will definitely be coming back to california. it is an agonizingly difficult, for many people, political question. we would submit to you that that question is properly decided by the people themselves. thank you, mr. chief justice. >> thank you, counsel, counsel. the case is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> we will have the reaction to today's oral arguments and the moment. the oral arguments will air again tonight at 8:00 eastern.

you can hear them anytime on c- span.org. we begin with attorneys declaring that marriages between a man and woman. it was a change approved by california voters in 2008. [cheering]

[cheering] >> is this close enough? good, david. >> those of you who were in court today, so why i like a lot better when this guy is on side as opposed to against

me. we had a very thoughtful hearing. appreciate the court's attention to this issue. we appreciate the preparation of all the justices. there were a number of thoughtful and tough questions to both sides. it is now in the hands of the supreme court. it has been a long journey here for the last 3.5 years. i think we are all greatly encouraged that we are within a few months of a final decision on this terribly important case. i think the most remarkable thing that happened in their was that there was no attempt to defend the ban on gay and lesbian marriage. there was no indication of any harm. all that was said in there was that this important constitutional right to be decided at the state level as opposed to the federal

government. it is a federal constitution that we haven't was the federal constitution guaranteed fundamental rights to every citizen in every state. when we are now down simply to the question of how do you establish marriage equality -- i think you can see how far we have come in the last few years. >> you are going to hear in a moment from crest and a sandy and jeff and paul who have been at the beginning of this case right up until now. they are the people about whom this case -- for whom this case is about. they and others like them in california and throughout the united states -- their rights should be treated with respect and dignity and equality under the law in california and throughout the united states. i think one of the most important things that happened today was the fact that the american people were listening to the argument. as david was saying, the other side, no one really offered a defense for the awful discrimination that takes place

when gay and lesbian citizens are not denied the right given to everyone else to have their family relationship recognized and respected equally. everybody, starting later this afternoon, people will be able to listen to these arguments and decide for themselves. we are confident where the american people are going with this. we're not sure what the united states supreme court will do but we are very gratified that they listened and heard and asks more questions and there is no denying where the right is and we hope the supreme court will come out in that way when they make this decision in june. >> can i ask you -- based on the question, do you feel confident the court is ready to make a sweeping ruling in this case? but based upon the questions that the justices asked, i have no idea. [laughter] the court has several ways to

decide this case from a very broad sweeping conclusion with respect to the rights of our citizens in this country to a narrower ruling that would be limited to california. the court never gives you an idea how they are going to decide. they did not today and i have read the brief and they care about the issues. we will see what the court decides. we will answer some more questions. i want everyone to hear from the individuals about for home this case is about, the real peopleaboutsandy and chris and jeff and paul who have been everyone's here right from the beginning of this case and we are in love with them and we are so humbled by the fact that we get to speak for them in the united states supreme court. do you want to go first? please state your name. >> i am chris kerri, planted in the case heard and saw the supreme court. in this country, as children, we learn that there is a founding principle that all men

and women are created equal. we want to see quality because this is a founding principle. unfortunately, with the passage of proposition 8, we learned there is a group of people in california not being treated equally and that was recognized by a federal court and the ninth circuit court. we look forward to a day when proposition 8 is finally and officially eliminated and the quality is restored to the state of california. >> hi, i am sandy spoear and i lived in inequality. i believe in our judicial system and have great faith that more than anything, i believe in love. proposition 8 is a discriminatory law that hurts people, the gays, lesbians in california, hurts the children we are raising and does so for

no good reason. it is our hope that we can move forward and remove this harm from society so that gays and lesbians in california can go back to their lives, living equally alongside their neighbors, with the same rights and protections as everyone else, thank you all very much. >> my name is paul katami and for me, this case has been about securing the right to marry the person i love and having the equal access to the most important relationship i know in life and that is marriage. i simply look forward to the day when i can be married to the person i love and start a family like cress and sandy have. it's as simple as that. it is a constitutional right and i cannot wait to start my family with jeff. >> i am jeff cerullo, we're pleased to have presented their case to the supreme court today. it has been the culmination of a long an amazing journey and we are thankful, so thankful for ted olson and david boyce. we are really looking forward

to this court decision, thank you. >> sandy and i would like to introduce you to our -- two of our sons, eliot and perry. >> name is spencer perry and this is my twin brother elliot and we ar two of chris and sandfy's very proud sons. i just want to say how incredibly proud we are of our parents. we love them. we love our family and we look forward to the day when we will be treated equally just like our neighbors families. thank you so much. [applause] >> dave and and i will be willing to answer some questions but it is very important to introduce chad griffin of the

human rights campaigner who has been with this case right from the beginning, right from the very start a parallel he recruited me and together we recruited david boyce to handle this case. it has been almost four years since a brief filed the case and 4.5 years has since we first met and started talking about what we would do in this case. chad griffin, i cannot say a number -- and of wonderful things about the things he has done for the rights of gay and lesbian citizens and what the american foundation of the equal rights which has supported this campaign and a human rights campaign have done for equal rights for gay and lesbian citizens. chad? >> thank you so much. all i can do is to once again thank ted and david to enabled us to lift the partisan veil

from which this issue is so often times discussed and, for the first on, shine the spotlight on the human face of suffering. press and sandy and paul and jeff and the boys, to be able to look them in the face and tell them that they and their family deserve anything other than a quality hon. law is something i challenge anyone to do. we are honored that our court system has worked and we have gone from the district court in northern california over these four years all the way here to washington today before the united states supreme court and we are all cautiously optimistic as we wait and see what this court will do. thank you very much. >> if you have any questions other than how the court is going to decide the case -- [laughter] >> [indiscernible] >> there is four ways in which

we can succeed in this case. california state of decided that proposition 8 was unconstitutional and although they were enforcing it, they quit defending it wants the district judge ruled it was unconstitutional. then you have the argument that no one could have appealed this case and the proponents who were in court today, the were the authors of the measure, did not have the right to carry it forward. if that is the case, the district court's decision, finding proposition 8 unconstitutional, stands and the governor and officials of california would be enjoined from enforcing it and that would be the end of proposition 8. or the ninth circuit could decide that because of the circumstances in california,

proposition 8 was unconstitutional because of those circumstances in california. third way is that there are many states who have acknowledged the rights of gays and lesbians to raise children and live together in households. the court could decide that structure is unconstitutional because california and those states have admitted that gay and lesbian individuals can live together and have families and raise children and they don't have any defense on that. finally, the broadest argument we made is that it is just wrong. it is not consistent with the ideals and laws and the constitution of this country to take our gay and lesbian brothers and sisters and put them in a class and deny them rights we give to everyone else. that is the broadest possible outcome. if any one of those four outcomes will would be a success in overturning proposition 8. >> [indiscernible] did you get the impression they liked any argument anywhere? readdon't think you can

that much into question. they were trying to probe both sides in terms of our arguments. that had four alternatives so i think the question has jumped around as they try to evaluate each of those four alternatives and i think trying to read too much into those questions is a risky proposition. >> did you not get the impression that while they may look at the narrow road, they were reluctant to look at the broader issue? >> i think there were a number of questions about the broad issue. a number of the questions went directly to whether there should be a broad 50-state basis of legality. you cannot read much into those approaches but every one of the four alternatives was considered. >> they seemed incredibly energize did not excite about this case. how would you describe this? >> the supreme court is a

marvelous institution. they hear the case is that the people bring to them and their lawyers get to stand in front of the justices -- anybody who was in the courtroom could realize we're standing within 10-12 feet of the justices -- they are dealing with the issues, they are asking hard questions. are listening to the answers and then they will write an opinion that explains their decision. the supreme court is a marvelous institution and they do not miss the opportunity when an argument is presented to them to ask penetrating and hard questions. the questions may not reveal how they are thinking but i want to know the answers to those questions so they put every advocate to the test, so to speak, and the american people will be able to see how this works. i want to say one thing about david and i coming together for this case. we come from different perspectives on the political

spectrum, so to speak, but are coming together is intended to make the point to america that this is not a democratic or republican issue or a conservative or liberal issue. this is an issue of american constitutional rights and everyone in this country should agree on the things we have been talking about. we treat our citizens with equality, with dignity, with fairness. equal protection of law is the protection of equal laws and david and i are trying to make that point, that it is not something that it is partisan. it is about american values. >> thank you. >> can you compare this to a landmark case? >> in terms of the outcome of this case, -- the question was whether this is a landmark case

-- it is so valuable to sell many of our citizens to be treated equally and with dignity and as david said, is one of the major, maybe the major final civil-rights battle we are fighting in this country. it is so important to our values as americans that it be decided in the right way. thank you very much. [indiscernible conversation] >> while you are waiting, i would like to introduce the two original plaintiffs in california on marriage equality.